SCOTUS Upholds Birthright Citizenship

A number of posts have discussed birthright citizenship.

 Amy Howe at SCOTUSblog:

The Supreme Court on Tuesday struck down President Donald Trump’s executive order seeking to end birthright citizenship – the guarantee of citizenship to virtually everyone born in the United States. In a decision by Chief Justice John Roberts, in Trump v. Barbara, the justices agreed with the challengers, as well as all of the lower courts around the country that have considered the issue, that Trump’s order cannot be reconciled with the 14th Amendment to the Constitution, which confers citizenship on anyone “born … in the United States, and subject to the jurisdiction thereof.”

Writing for the majority, Roberts emphasized that the “children born of parents unlawfully or temporarily present in the United States” “satisfy both elements of the Citizenship Clause.” “Under the Constitution,” he concluded, “they are citizens at birth.”

In a dissenting opinion, Justice Samuel Alito called the ruling both “one of the most important decisions in the history of the Court” and “a serious mistake.” “Careful analysis of the text of the Fourteenth Amendment and the process that led to its adoption,” Alito argued, “shows that it does not degrade the concept of United States citizenship in this way. Instead,” he contended, “the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country.”

Trump issued the executive order at the center of the case on Jan. 20, 2025, shortly after he was sworn into office for a second term. It provided that babies who are born in the United States to parents who are in this country either illegally or temporarily are not automatically entitled to citizenship.

CMC Connects: Presidential Power in 2026

Hard Power

Executive Orders

Personnel

• Net reduction of 242,260 employees
• Political and ideological considerations
• SCOTUS case on the FTC

Pardons

Use of Force

CRS counts 469 foreign interventions between 1798 and 2022

Since January 20, 2025:

• Venezuela: boat bombings and capture of Maduro):
• Iran: Airstrikes on nuclear facilities 
• Yemen: Air strikes against Houthi militants
• Counterterrorism Strikes in Iraq, Nigeria, and Somalia.

Domestic use of National Guard, CBP, and ICE

Investigation and Prosecution

• James Comey: charges of making false statements to Congress and obstruction related to his 2020 testimony. The indictment was  dismissed.
• John Bolton: indictment for alleged unauthorized retention and transmission of classified information.
• Letitia James New York Attorney General indicted in October 2025 on bank fraud and false statements charges.  Case dismissed. 
•  Jerome H. Powell said DOJ as opened a criminal investigation into Powell; prosecutors are looking at cost overruns.

Threats: Regulatory Action and Funding

• Universities and funding
• Law firms representing Trump adversaries:  contracts
• Media companies and FCC license threats

Soft Power:  "Power to Persuade"

Support from congressional Republicans and One Big Beautiful Bill

Public approval is down

Trump II, First Year

Many posts have discussed the presidency.

 Ballotpedia:

Earlier this week marked the one year anniversary since Donald Trump (R) assumed office as the 47th president of the United States, making him one of only two U.S. presidents to serve two non-consecutive terms. Here’s a look at the first year of his second term, by the numbers, though Jan. 16.

Executive actions

Trump issued 229 executive orders, 57 presidential memoranda, and 118 proclamations in the first year of his second term. Trump’s executive order total was the highest first-year executive order total since Franklin Delano Roosevelt (D), who issued 568 executive orders in 1933.

Federal judges

Trump nominated, and the Senate confirmed 27 Article III federal judges, including 21 to U.S. District Courts and six to the U.S. Courts of Appeals. During the first year of his first term, Trump nominated, and the Senate confirmed 23 Article III judges, including one Supreme Court Justice, 12 to the U.S. Courts of Appeals, and 10 to the U.S. District Courts.

Supreme Court emergency applications

The Trump administration filed 32 emergency applications with the Supreme Court. An emergency application asks the Court for immediate intervention in a case that has not fully progressed through the ordinary procedures required for the Court to issue a regular opinion. The Court granted the Trump administration’s request for intervention in 21 cases.

Presidential pardons

Trump issued 181 presidential pardons and commutations, not including instances of mass pardons. According to the Department of Justice, during fiscal year 2017, Trump issued one pardon and no commutations. Joe Biden (D), Barack Obama (D), and George W. Bush (R) issued no pardons or commutations during their first fiscal year in office.

Tie-breaking votes in the Senate

Under Article I, Section 3, Clause 4 of the U.S. Constitution, the vice president also serves as the president of the Senate and may cast the deciding vote when there is a tie in the Senate. Vice President J.D. Vance (R) cast seven tie-breaking votes in the Senate.

Congressional Output

 Many posts have discussed the state of Congress.

Paul Kane at WP:

With fewer than 40 bills signed into law as of Monday, the House and Senate set a modern record for lowest legislative output in the first year of a new presidency, according to data maintained by C-SPAN and Purdue University.

Despite that lack of productivity, the Senate held more roll-call votes (659) than any odd-numbered year of this century, with almost 60 percent of them focused on advancing President Donald Trump’s nominations to the executive and judicial branches.

The House, meanwhile, set a 21st-century record for fewest votes cast (362) in the first session of a two-year Congress. It held barely half as many votes as in 2017, which was Trump’s first year in office and when Republicans held the majority.

Perhaps not surprisingly, an unusually large number of House members — 24 Republicans and 19 Democrats — have decided to leave the chamber either to retire or run for other office. That places the chamber on pace to set a 21st-century record for retirements in one Congress, according to C-SPAN and Purdue.

Congress did pack a lot into the One Big Beautiful Bill:

Such strategy has accelerated with each new president and his congressional majority. In 2001, George W. Bush and his GOP allies pushed through a massive tax cut on the fast-track process known as reconciliation, averting a potential filibuster in the Senate. Still, the Congress managed to send 107 other laws to the president’s desk for his signature that year.

In 2017, Republicans passed a massive tax cut through reconciliation plus sent an additional 75 pieces of legislation to Trump’s desk before Christmas.

This year’s Congress also has a massive policy bill but otherwise only about half the output of Trump’s first term. Only in 2023, with a split Congress and the Biden-Harris White House already focused on a presidential election, were fewer laws passed in the first year of a Congress, according to 32 years of data kept by C-SPAN and Purdue.

...One area in which Republicans became more productive was in eliminating federal regulations via the Congressional Review Act, which allows Congress a certain amount of time to consider new regulations and, with fast-track procedures, vote to eliminate them.

The act rarely had been used since its passage in 1996, but recent Republican majorities have relied on it.

The process, of course, takes time away from legislation that could be considered on the House and Senate floors.

Unilateral Power

Many posts have discussed presidential power.

Bruce Mehlman:

They say if you want to go fast, go alone. The Trump 2.0 White House has issued more executive orders in its first year than any Administration since FDR’s, recognizing that executive orders take effect instantly while court challenges to their legality take months. Likewise the great “unlock” for Presidential power is declaring emergencies, as Congress created special authorities for moments that demand quick and decisive action, such as 9-11, COVID or the Iranian hostage crisis. Courts usually defer to the Executive Branch on what constitutes an emergency, and T2.0 declared more first-year emergencies than the seven prior Administrations combined

.

Emergency Powers

 Bruce Mehlman:

Many laws give Presidents additional authorities to act in the event of national emergencies such as the 9/11 attacks, the Great Financial Crisis or COVID. There are no formal definitions of what qualifies as an “emergency,” and courts have shown wide latitude to Presidents in making that determination. The Trump Administration has declared more emergencies more often than any of its predecessors, citing nearly a dozen to justify & expedite executive action.

Executive Orders By Year

 Richard Pildes at Election Law Blog:

In preparing for a class on presidential powers I’ll be teaching this fall with Bob Bauer, I made this chart of the average number of executive orders per year each President has issued over the course of their presidency. The data comes from the American Presidency project. Having made it, I thought it would be interesting to share:

Nationwide Injunctions

Many posts have discussed the power of the courts.

Sam Baker at Axios:

Lawsuits against the federal government start in a district court — there are more than 600 district-court judges — then can move to an appeals court, then the Supreme Court.In the old days, district courts' rulings only applied to the parties before them. But since the beginning of the Obama administration, those judges have become increasingly willing to say their rulings apply nationwide — the same scope a Supreme Court decision has.

By the numbers: District courts issued 12 rulings freezing Obama administration policies, according to a Harvard Law Review tally — a record at the time.That leapt to 64 in President Trump's first term. District courts also blocked many of President Biden's signature policy proposals, including student-loan forgiveness.

At least 15 universal (nationwide) injunctions have been issued against Trump's second-term policies.

There's a "completely shameless amount of hypocrisy" right now about universal injunctions, said Steve Vladeck, a Georgetown law professor who has been a consistent skeptic of their rise.Trump, White House officials and MAGA leaders are decrying "out-of-control" district courts — but celebrated their rulings against Biden. Few Democrats who decried those rulings against Obama or Biden are complaining about them now.

...

Critics argue the rise of universal injunctions has also fueled a rise in venue shopping.
When you only need to convince one district judge to halt an entire federal program, you'll quickly figure out the best place to file your lawsuit — and keep filing them there.

A handful of conservative judges end up hearing the bulk of challenges to major Democratic initiatives for precisely this reason.

Allowing states to sue the federal government — another trend that gained steam on the right during the Obama years, and is now fully bipartisan — also contributes to the rise in these rulings.

...

The one idea that no legal scholar has seriously endorsed is simply defying the courts — as many of Trump's closest allies, including Vice President Vance, have suggested.

Presidential Pantomime

Kevin Kosar at AEI:

Shortly before he left office, President Joe Biden declared that the Equal Rights Amendment was now part of the Constitution and “the law of the land,” never mind that federal courts and the National Archivist have said otherwise.

Similarly, President Barack Obama responded to a mass shooting at a Newtown, Connecticut school by demanding federal police trace any guns used in mass shootings. That this latter policy had no effect to prevent future shootings was no matter — it gave the appearance of doing something.

And that is a big reason why presidents so often issue toothless executive orders and memoranda, according to University of Michigan Professor, Kenneth Lowande, the author of False Front: The Failed Promise of Presidential Power in a Polarized Age (University of Chicago, 2024).

“Presidents take action — even when it does nothing to affect policy — because our political system is not designed to let presidents solve major problems,” he writes.

The U.S. Constitution fractures governing power among the branches and assigns all legislative authority to Congress. The nation’s chief executive must operate within the powers granted by the Constitution and federal law. “Their first and most direct power,” Lowande writes, “is over the appearance of governing, not governing itself.”

POTUS and Marijuana

From President Biden:

As I often said during my campaign for President, no one should be in jail just for using or possessing marijuana. Sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit. Criminal records for marijuana possession have also imposed needless barriers to employment, housing, and educational opportunities. And while white and Black and brown people use marijuana at similar rates, Black and brown people have been arrested, prosecuted, and convicted at disproportionate rates.

Today, I am announcing three steps that I am taking to end this failed approach.

First, I am announcing a pardon of all prior Federal offenses of simple possession of marijuana. I have directed the Attorney General to develop an administrative process for the issuance of certificates of pardon to eligible individuals. There are thousands of people who have prior Federal convictions for marijuana possession, who may be denied employment, housing, or educational opportunities as a result. My action will help relieve the collateral consequences arising from these convictions.

Second, I am urging all Governors to do the same with regard to state offenses. Just as no one should be in a Federal prison solely due to the possession of marijuana, no one should be in a local jail or state prison for that reason, either.

Third, I am asking the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law. Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances. This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine – the drugs that are driving our overdose epidemic.

Finally, even as federal and state regulation of marijuana changes, important limitations on trafficking, marketing, and under-age sales should stay in place.

Too many lives have been upended because of our failed approach to marijuana. It’s time that we right these wrongs. 

The Congressional Research Service finds that a president cannot directly decriminalize marijuana, but there is more to the story -- hence step three of the Biden announcement.

Either Congress or the executive branch has the authority to change the status of marijuana under the CSA [Controlled Substances Act]. Congress can change the status of a controlled substance through legislation: Congress included  marijuana in Schedule I by legislation when it enacted the CSA, and has more recently passed legislation to impose controls on other substances, including synthetic cannabinoids and fentanyl analogues. In the alternative, the CSA empowers DEA to make scheduling decisions through the notice-and-commentrulemaking process, in consultation with the Department of Health and Human Services (HHS) (HHS has delegated its factfinding role in this process to the Food and Drug Administration (FDA)). The CSA provision directing DEA to schedule controlled substances as “required by United States obligations under international treaties” may limit the agency’s authority to relax controls of marijuana; another CRS report discusses considerations for Congress related to marijuana’s status under international drug control treaties.

If the President sought to act in the area of controlled substances regulation, he would likely do so by executive order. However, the Supreme Court has held that the President has the power to issue an executive order only if authorized by “an act of Congress or . . . the Constitution itself.” The CSA does not provide a direct role for the President in the classification of controlled substances, nor does Article II of the Constitution grant the President power in this area (federal controlled substances law is an exercise of Congress’s power to regulate interstate commerce). Thus, it does not appear that the President could directly deschedule or reschedule marijuana by executive order.

Although the President may not unilaterally deschedule or reschedule a controlled substance, he does possess a large degree of indirect influence over scheduling decisions. The President could pursue the appointment of agency officials who favor descheduling, or use executive orders to direct DEA, HHS, and FDA to consider administrative descheduling of marijuana. The notice-and-comment rulemaking process would take time, and would be subject to judicial review if challenged, but could be done consistently with the CSA’s procedural requirements. In the alternative, the President could work with Congress to pursue descheduling through an amendment to the CSA.

Weed the people: These are the states where marijuana is legal.

This map reveals that public opinion, red and blue states, and voters across the political spectrum have all come around to the idea of legal weed. pic.twitter.com/4MegZIgnv6

— Vox (@voxdotcom) April 20, 2022

Sanctions

 From the White House:

Yesterday, Russian President Vladimir Putin of Russia recognized two regions of Ukraine as independent states and today claimed that recognition to include all of the Donbas region. The Russian Parliament also authorized the deployment of additional Russian forces into this Ukrainian territory.

As President Biden and our Allies and partners have made clear, we will impose significant costs on Russia for Russia’s actions. Today, the Administration is implementing the first tranche of sanctions that go far beyond 2014, in coordination with allies and partners in the European Union, United Kingdom, Canada, Japan, and Australia. And as President Biden promised, we worked with Germany to ensure the Nord Stream 2 pipeline will not move forward.

The President has directed the following measures:

• Full blocking sanctions on two significant Russian financial institutions. The Secretary of the Treasury will impose full blocking sanctions on two large state-owned Russian financial institutions that provide key services crucial to financing the Kremlin and the Russian military: Vnesheconombank and Promsvyazbank and their subsidiaries. Collectively, these institutions hold more than $80 billion in assets and finance the Russian defense sector and economic development. These measures will freeze their assets in the United States, prohibit U.S. individuals and businesses from doing any transactions with them, shut them out of the global financial system, and foreclose access to the U.S. dollar.
• Expanded sovereign debt prohibitions restricting U.S. individuals and firms from participation in secondary markets for new debt issued by the Central Bank of the Russian Federation, the National Wealth Fund of the Russian Federation, and the Ministry of Finance of the Russian Federation. These prohibitions will cut off the Russian government from a key avenue by which it raises capital to fund its priorities and will increase future financing costs. It denies Russia access to key U.S. markets and investors.
• Full blocking sanctions on five Russian elites and their family members: Aleksandr Bortnikov (and his son, Denis), Sergei Kiriyenko (and his son, Vladimir), and Promsvyazbank CEO Petr Fradkov. These individuals and their relatives directly benefit from their connections with the Kremlin. Other Russian elites and their family members are on notice that additional actions could be taken against them.
• Today, the Secretary of the Treasury will determine that any institution in the financial services sector of the Russian Federation economy is a target for further sanctions. Over 80% of Russia’s daily foreign exchange transactions globally are in U.S. dollars and roughly half of Russia’s international trade is conducted in dollars. With this action,no Russian financial institution is safe from our measures, including the largest banks.

These actions come in addition to steps being taken by our Allies and partners and represent our first response to Russia’s actions. As President Biden made clear, Russia will pay an even steeper price if it continues its aggression.

Text of the executive order 

Chief Executive v. Executive Branch

Dan Balz reports at The Washington Post:

Early in the week, Trump complained on Twitter about his Justice Department’s rewriting of his original travel ban just as the administration has asked the Supreme Court to overturn an appellate court ruling striking down the policy. Those tweets potentially damage the government’s legal case, but beyond that, they ignore the fact that the president signed the original and the revised order that he now derides.

The New York Times then reported Trump’s ongoing dissatisfaction with Attorney General Jeff Sessions, whom the president has not forgiven for recusing himself from all things related to Russia, a decision that has led in one step after another to Comey’s departure and the appointment of Mueller as special counsel. Sessions, of course, was one of Trump’s earliest and most important endorsers and a staunch loyalist throughout the campaign. If one as loyal as Sessions receives no loyalty in return, what will others in the administration think?

In another example of the president being disconnected from his top advisers, Politico’s Susan Glasser reported that language reaffirming this nation’s commitment to Article 5 of the NATO treaty, a standard of presidential speeches to U.S. allies in Europe, was removed at the last minute from Trump’s speech at NATO headquarters last month. The president’s senior national security advisers had signed off on the wording, and apparently it was removed without their advance knowledge, according to the report.

In the wake of a decision Monday by Persian Gulf nations to cut off relations with Qatar, an action that has further roiled the Middle East, Trump used Twitter to take credit by tweeting about what he had said and done while in Saudi Arabia on his recent trip. Meanwhile, Secretary of State Rex Tillerson and Defense Secretary Jim Mattis offered more careful and reassuring reactions, hoping to contain rather than enlarge the rift.

Also in the past five days, Trump got into a Twitter spat with London Mayor Sadiq Khan in the aftermath of Saturday’s terrorist attack. His criticism of the mayor came shortly after he expressed solidarity with the people of Britain over the attack. The feud between Trump and Khan began more than a year ago, but the president’s decision to use this moment to revive it brought a shocked reaction and criticism from Britain.

National Monuments and Revocation

At AEI, John Yoo writes of the designation of national monuments under the Antiquities Act:

The president has the general discretionary power to revoke monument designations of his predecessors. Although a 1938 attorney general opinion reached the opposite conclusion, that poorly reasoned opinion was inconsistent with law governing the president’s exercise of analogous powers. It is an accepted principle of government that the authority to execute a discretionary power includes the authority to revoke such exercise. Thus, the president’s authority to designate a monument includes the authority to revoke a designation. A second principle, established by both constitutional jurisprudence and governmental practice, dictates that a branch of government can reverse its earlier actions using the same process originally used. Therefore, a past president exercising his authority to designate a monument could not bind a future president’s authority to revoke it.

The president’s power of revocation is at its height when a new factual circumstance or legal determination requires a response to comport with the law. The president has the constitutional duty to ensure that laws are faithfully executed. A change in factual circumstance could mean that a prior designation is no longer statutorily appropriate. For example, if artifacts in a monument had been excavated and safeguarded, he could determine that revocation is necessary to comply with the “smallest area” requirement of the Act. He could also make the legal determination that a prior designation was illegal under the Act and therefore void. For example, designations of vast acreage may violate the “smallest area” requirement, or marine designations may violate the requirement that the United States “control” the designated area. At least some of the millions and millions of acres of land and sea designated by Presidents F. Roosevelt, Carter, Clinton, and Obama should accordingly be reviewed for their factual and legal fitness.
...
Executive authority is fleeting by Constitutional design. If a president does not protect his policies through the bicameral legislative processes, he leaves those policies vulnerable to his successors.

Trump, Checked, Balanced

Court order in Washington v. Trump:

The Government contends that the district court lacked authority to enjoin enforcement of the Executive Order because the President has “unreviewable authority to suspend the admission of any class of aliens.” The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches—an uncontroversial principle that is well-grounded in our
jurisprudence. See, e.g., Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (recognizing that “the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control” (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977))); see also Holder v.
Humanitarian Law Project, 561 U.S. 1, 33-34 (2010) (explaining that courts should defer to the political branches with respect to national security and foreign relations). Instead, the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.

There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. See Boumediene v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that, even by congressional statute, Congress and the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the “political branches” lack “the power to switch the Constitution on or off at will”). Within our system, it is the role of the judiciary to interpret the law,
a duty that will sometimes require the “[r]esolution of litigation challenging the constitutional authority of one of the three branches.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). We are called upon to perform that duty in this case.

...
 The Government has pointed to no evidence that any alien from any of the countries named in the Order has  perpetrated a terrorist attack in the United States.Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.  We disagree, as explained above.

The Trump White House

Glenn Thrush and Maggie Haberman report at The New York Times:

President Trump loves to set the day’s narrative at dawn, but the deeper story of his White House is best told at night.

Aides confer in the dark because they cannot figure out how to operate the light switches in the cabinet room. Visitors conclude their meetings and then wander around, testing doorknobs until finding one that leads to an exit. In a darkened, mostly empty West Wing, Mr. Trump’s provocative chief strategist, Stephen K. Bannon, finishes another 16-hour day planning new lines of attack.

Usually around 6:30 p.m., Mr. Trump retires upstairs to the residence to recharge, vent and intermittently use Twitter. With his wife, Melania, and young son, Barron, staying in New York, he is almost always by himself, sometimes in the protective presence of his imposing longtime aide and former security chief, Keith Schiller. When Mr. Trump is not watching television in his bathrobe or on his phone reaching out to old campaign hands and advisers, he will sometimes set off to explore the unfamiliar surroundings of his new home.

During his first two dizzying weeks in office, Mr. Trump, an outsider president working with a surprisingly small crew of no more than a half-dozen empowered aides with virtually no familiarity with the workings of the White House or federal government, sent shock waves at home and overseas with a succession of executive orders designed to fulfill campaign promises and taunt foreign leaders.

... 

Mr. Priebus bristles at the perception that he occupies a diminished perch in the West Wing pecking order compared with previous chiefs. But for the moment, Mr. Bannon remains the president’s dominant adviser, despite Mr. Trump’s anger that he was not fully briefed on details of the executive order he signed giving his chief strategist a seat on the National Security Council, a greater source of frustration to the president than the fallout from the travel ban.

New CNN/ORC poll: No honeymoon period for President Trump https://t.co/kf6FI01mtb

— New Day (@NewDay) February 6, 2017

Any negative polls are fake news, just like the CNN, ABC, NBC polls in the election. Sorry, people want border security and extreme vetting.

— Donald J. Trump (@realDonaldTrump) February 6, 2017

I call my own shots, largely based on an accumulation of data, and everyone knows it. Some FAKE NEWS media, in order to marginalize, lies!

— Donald J. Trump (@realDonaldTrump) February 6, 2017

Donald Trump and Executive Orders

Michael C. Bender writes at Bloomberg:

Donald Trump may be one of Barack Obama's toughest critics, but when it comes to the president's use of executive orders to circumvent Congress, the Republican sees him as a role model.

Trump has already promised to be as aggressive as Obama on executive orders on a wide range of issues. Early in his campaign, for instance, he vowed to use the power of the pen to give all cop killers the death penalty. More recently, in his response to the shooting death of 49 people inside an Orlando gay club this month, he pledged to use executive power to implement one of his signature proposals: A temporary ban on Muslim immigration (even though the shooter was born in New York).

,,, 

In addition to the Muslim ban, here are other policies Trump has proposed that he could accomplish without help from Congress:

...
• Tighten regulations on money-transfer companies: The cornerstone of Trump's candidacy has been a promise to build a wall along the U.S.-Mexico border. While Congress approves spending for construction projects, Trump says he can force Mexico to pay for it by taking control of an estimated $26 billion that is wired to Mexico from the U.S. every year.

Trump has said he would halt these remittances “on day one” by rewriting banking rules to expand the federal regulations on companies like Western Union and PayPal. He'd then add a new rule to block undocumented immigrants from wiring money outside the borders.

Trump’s administration would have the authority to write these rules, said Peter Wallison, former White House counsel in the Reagan administration. But Wallison and others—including Republicans and Democrats—questioned the practicality of implementing such a plan. “The notion that we’re going to track every Western Union bit of money that’s being sent to Mexico, you know, good luck with that,” Obama said after Trump unveiled his proposal in April.

Trump and Executive Orders

Some conservatives hope that Trump would curb executive authority. But January 10, his comments on Meet the Press suggested the opposite:

CHUCK TODD:Are you going to refuse to do executive orders as president?

DONALD TRUMP:I won't refuse it. I won't refuse them.

CHUCK TODD:You'll do them, too, right--

DONALD TRUMP:I will do a lot of right things. Well, I mean, he's led the way, to be honest with you; what he's done on immigration, when he signed those papers. Now, fortunately, the courts, all of a sudden, have done a little bit of a termination. We'll see what happens. But one of the beautiful things about executive orders (from my standpoint) is, if I get elected, many of those executive orders that he signed, the first day, they're going to be unsigned.

CHUCK TODD:Oh, I understand that. But you're willing to use them, too, yourself?

DONALD TRUMP:Oh, I'm not going to rule it out.

CHUCK TODD:Final question, because I know you've got the rally to get to--

DONALD TRUMP: But I'm going to use them much better and they're going to be, and they're going to serve a much better purpose than what he's done.

He had already identified one such order.  In December, Ben Kasimar reported at The Hill:

Republican presidential front-runner Donald Trump on Thursday vowed to issue an executive order to mandate the death penalty for anyone who kills a police officer.

“One of the first things I’d do in terms of executive order, if I win, will be to sign a strong, strong statement that would go out to the country, out to the world, anybody killing a police man, a police woman, a police officer, anybody killing a police officer, the death penalty is going to happen,” he said.

(The proposal was not a slip of the tongue.  Media adviser Dan Scavino tweeted it out.)

The New York Times explains:

For a person prosecuted in state court for killing a police officer, that state’s laws would apply, not the wishes of the president.

“He would have no authority over what happens in prosecutions under state law,” said Austin D. Sarat, a professor of law and political science at Amherst College who has studied the death penalty.

Moreover, nearly 20 states do not have the death penalty.

The death penalty does exist for some federal crimes, including killing a federal law enforcement official. But it is seldom used; only three people have been executed by the federal government in the last half-century.

Those issues aside, if Mr. Trump wants the death penalty to be mandatory for people who kill police officers, that is problematic, too, according to experts. The Supreme Court ruled in 1976 that mandatory death sentences were unconstitutional.

Madisonian Architecture

At Cato, Jonathan Turley writes:

 I believe that the separation of powers, the lines of division, are essential to the protection of liberty and the maintenance of stability in our system. Indeed, I view the current mess in Washington as further proof of the genius of Madison and why those lines of separation have to be maintained. To quote Robert Frost, “good fences make good neighbors.”

So I found myself looking more closely at the concept of structure and that took me to architectural theory. There I found a strikingly parallel discussion to the one started hundreds of years ago by Madison and his contemporaries. I was particularly drawn to the theories of how structure influences behavior in so-called “deterministic designs.” How we structure things influences not only how people move, but how they relate to each other—we relate differently in an open room than a room that is divided. Winston
Churchill said, “There is no doubt whatever about the influence of architecture and structure upon human character and action. We make our buildings and afterwards they make us.” Churchill, as usual, was incredibly insightful.

It is time to return to basics and consider the role of structure in our constitutional system. I believe that the Framers viewed our tripartite system as a type of deterministic architecture. It sort of funnels action and energies; it structures how we relate to each other. It forces us to deal with each other in a way that brings stability and dialogue. That’s why this functionalist approach is so dangerous. We’re removing these barriers from the design, and the result  is chaos. The result is a series of muscle plays between presidents and Congresses. The courts have removed themselves from these debates. We have a lack of stability, but we also have a lack of movement. Because the president can simply go outside the system, he doesn’t have to negotiate with Congress. He doesn’t have to compromise. It not only fuels partisan brinkmanship but poorly crafted laws and regulations. For example, by any measure, the Affordable Care Act was a uniquely bad piece of legislation when it was passed. It was filled with conflicts, gaps, and errors. Even Democrats, I think, will tell you privately that it was a fairly raw piece of legislation. Why? Because it never went through a bipartisan scrubbing, and negotiation, and compromise. It was a muscle play. And the result was a uniquely bad piece of legislative work.

Madison believed that by tapping into human emotions, tapping into this tendency toward factions, playing factions against each other, he had achieved a stable constitutional system for one of the most pluralistic nations on Earth. It was in fact the system that we need today—just as we needed it then. However, we lost faith in the values that support our Constitution. The branches themselves are no longer fighting for their institutional integrity, as he expected. When you look at those members applauding the president in his pledge to go it alone, you realize how far out of faith we have come

Executive Actions

USA Today reports:

Obama has made prolific use of memoranda despite his own claims that he's used his executive power less than other presidents. "The truth is, even with all the actions I've taken this year, I'm issuing executive orders at the lowest rate in more than 100 years," Obama said in a speech in Austin last July. "So it's not clear how it is that Republicans didn't seem to mind when President Bush took more executive actions than I did."

Obama has issued 195 executive orders as of Tuesday. Published alongside them in the Federal Register are 198 presidential memoranda — all of which carry the same legal force as executive orders.

...
Kenneth Lowande, a political science doctoral student at the University of Virginia, counted up memoranda published in the Code of Federal Regulations since 1945. In an article published in the December issue of Presidential Studies Quarterly, he found that memoranda appear to be replacing executive orders.

...
Though they're just getting attention from some presidential scholars, White House insiders have known about the power of memoranda for some time. In a footnote to her 1999 article in the Harvard Law Review, former Clinton associate White House counsel Elena Kagan — now an Obama appointee to the U.S. Supreme Court — said scholars focused too much on executive orders rather than presidential memoranda.

...
There are subtle differences. Executive orders are numbered; memoranda are not. Memoranda are always published in the Federal Register after proclamations and executive orders. And under Executive Order 11030, signed by President Kennedy in 1962, an executive order must contain a "citation of authority," saying what law it's based on. Memoranda have no such requirement.

Jonathan Adler writes at The Volokh Conspiracy blog:

Earlier Tuesday, a federal court in Pennsylvania declared aspects of President Obama’s executive actions on immigration policy unconstitutional.

According to the opinion by Judge Arthur Schwab, the president’s policy goes “beyond prosecutorial discretion” in that it provides a relatively rigid framework for considering applications for deferred action, thus obviating any meaningful case-by-case determination as prosecutorial discretion requires, and provides substantive rights to applicable individuals. As a consequence, Schwab concluded, the action exceeds the scope of executive authority.

This is the first judicial opinion to address Obama’s decision to expand deferred action for some individuals unlawfully present in the United States. [I've now posted the opinion here.]

Josh Gerstein writes at Politico:

The Pittsburgh-based judge rejected a Justice Department legal opinion arguing that Obama's actions fall within the traditional realm of the executive's discretion about which cases to pursue and which to overlook. Schwab, a George W. Bush appointee, also quoted in detail from a series of public statements Obama made in recent years about the limits on his executive authority to make sweeping changes in immigration enforcement.

A Justice Department spokesman rejected the judge's legal rationale and his decision to opine on the legality of Obama's actions.

"The decision is unfounded and the court had no basis to issue such an order," said the official, who asked not to be named. "No party in the case challenged the constitutionality of the immigration-related executive actions and the department’s filing made it clear that the executive actions did not apply to the criminal matter before the court. Moreover, the court’s analysis of the legality of the executive actions is flatly wrong. We will respond to the court’s decision at the appropriate time.”

Another administration official, who also asked not to be named, added: "The judge's ruling has absolutely no effect on the president's executive actions. The judge hasn't been asked to rule on them, and the judge's order does not affect them. [The Department of Homeland Security] continues to prepare to implement the executive actions."

Suit Against the Immigration Action

In the second edition of our book, we start the federalism chapter with a photo of Texas Attorney General (now Governor-elect) Greg Abbott announcing a suit against President Obama's health care law. He is taking the administration to court again. A release from Texas Attorney General's office: 

Texas Attorney General Greg Abbott issued the following statement after taking legal action challenging President Barack Obama’s immigration executive action:

“The President’s unilateral executive action tramples the U.S. Constitution’s Take Care Clause and federal law. The Constitution’s Take Care Clause limits the President’s power and ensures that he will faithfully execute Congress’s laws – not rewrite them under the guise of ‘prosecutorial discretion.’ The Department of Homeland Security’s directive was issued without following the Administrative Procedure Act’s rulemaking guidelines and is nothing but an unlawfully adopted legislative rule: an executive decree that requires federal agencies to award legal benefits to individuals whose conduct contradicts the priorities of Congress.

“The President is abdicating his responsibility to faithfully enforce laws that were duly enacted by Congress and attempting to rewrite immigration laws, which he has no authority to do – something the President himself has previously admitted. President Obama’s actions violate the Take Care Clause of the U.S. Constitution and the Administrative Procedure Act, which were intended to protect against this sort of executive disregard of the separation of powers.”

States’ legal challenges to the President’s executive action: 

• The executive action on immigration conflicts with the President’s constitutional duty to “take Care that the Laws be faithfully executed.” The Take Care Clause limits the scope of presidential power and ensures that the chief executive will uphold and enforce Congress’s laws – not unilaterally rewrite them under the cover of “prosecutorial discretion.”
• The DHS Directive failed to comply with the Administrative Procedure Act’s required notice and comment rulemaking process before providing that legal benefits like federal work permits, Medicare, and Social Security be awarded to individuals who are openly violating immigration laws.
• The executive action to dispense with federal immigration law will exacerbate the humanitarian crisis along the southern border, which will affect increased state investment in law enforcement, health care and education.

The States’ case was filed in U.S. District Court in the Southern District of Texas. The multistate coalition includes Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Mississippi, Montana, Nebraska, North Carolina, South Carolina, South Dakota, Texas, Utah, West Virginia and Wisconsin.