Don’t Let Trump Erase Immigrants from the Citizenship Clause

What does it mean to be born free? How did the drafters of the U.S. Constitution’s Citizenship Clause think about it? And how should their vision of freedom at birth inform today’s debates over birthright citizenship? 

When defending his plans to deny citizenship to children of immigrants, President Trump has repeatedly claimed that birthright citizenship is about the “the babies of slaves” and “not immigration.” While Trump is (shockingly) correct that redressing the horrors and injustices of slavery was the core purpose of the citizenship clause, he distorts history when he claims that immigrants weren’t included in that conversation. Congress saw clearly the danger of new status-based caste systems arising in the United States, and when they rewrote the Constitution, they intentionally included immigrants.  

In the 1800s, the guarantee of freedom at birth was, perhaps more than anything, what Black parents who escaped from slavery in the South wanted for their children. In 1832, Margaret Morgan, a Black woman, fled from Maryland (a slave state) to Pennsylvania (a free state) with her husband, a free Black man. Margaret had been verbally freed by her enslaver, John Ashmore, 20 years prior, but he did not issue her a written “deed of manumission.” In other words, she was an undocumented free person. When Margaret and her husband had children in Pennsylvania, they surely believed that, her status aside, their Pennsylvania children would be born free from slavery’s shadow.  

Sadly, Margaret’s enslavers and the courts had other plans. When John Ashmore died, his widow hired slave catchers to bring Margaret and her children back to Maryland and force them into bondage. The slave catchers argued that the Fugitive Slave Law outweighed any state-based protections to which Margaret may be entitled. In a case that eventually came before the U.S. Supreme Court, Prigg v. Pennsylvania, eight justices ruled in favor of the slave catchers, allowing Margaret and her freeborn children to be enslaved without due process. 

After the Civil War, cases like Prigg and the similarly heinous Dred Scott decision a few years later motivated Congress to pass an Amendment guaranteeing citizenship to “all persons born or naturalized in the United States.” But some senators, like Edgard Cowan, argued that its broad language should be narrowed to prevent the nation from being “invaded” by a “flood of immigration” from Chinese people, “Gypsies,” and other undesirable groups. The bill was passed in its current form despite these objections because a majority in Congress saw the connection between the institution of slavery and emerging systems designed to exploit and oppress immigrants.  

As California Sen. James Conness pointed out in his rebuttal to Sen. Cowan, before the Civil War (under the influence of its “southern brethren”) California had laws preventing both Black people and Chinese people from testifying in court. After the law was repealed in 1862 for Black people but not for Chinese people, confederate sympathizers “robbed, plundered and murdered” Chinese people with impunity because Chinese people could not testify to the acts committed against them. As a result of his historical experience, Sen. Conness was “very glad indeed that we have determined at length that every human being may relate what he heard and saw in court” and “entirely ready to accept that the children born here of [Chinese] parents shall be . . . entitled to civil rights and to equal protection before the law with other.” Sen. Conness’ arguments carried the day, and the 14th Amendment was passed in its current form, without anti-immigrant restrictions. 

Today, many commentators see echoes of the Fugitive Slave Laws in growing federal efforts to arrest and detain immigrants without due process, to deny citizenship to their American born children, and to strip citizenship from those deemed undeserving. Just as Margaret Morgan’s inability to prove her legal status shaped her and her children’s outcomes 200 years ago, today immigration status is a key deciding factor in determining access to dignified work, health, safety, and a whole suite of rights and privileges which define what it means to be a full member of society.  

People without legal status work some of the lowest paid, most difficult jobs in our society. They are uniquely vulnerable to wage theft, sexual assault and other forms of exploitation precisely because they are often reluctant to testify to the crimes committed against them. As the Trump administration expands deportation efforts in sensitive places, like courtrooms, hospitals and schools, these forms of exploitation are only likely to get worse.  

Now, as in the 1800s, the Supreme Court is playing an active role in the erection and maintenance of this immoral caste system. Until last Friday, undocumented mothers could assume that even if they might be arbitrarily arrested, detained and deported without due process, their children could grow up secure in their status as citizens. Though it did not address the underlying constitutional challenge to Trump’s unilateral attempt to end birthright citizenship, after Friday’s ruling, experts predict that litigation may produce a patchwork of protection, where babies born in some states are rendered stateless and ineligible for benefits, with no ties or guarantees of protection in another country, but no security in their lives here. In short, the President, with the Court’s help, is erecting precisely the kind of caste system that the Framers of the 14th Amendment wished to avoid.  

These are difficult days for immigrants’ rights. But just as the past provides warnings about how government can distort democracy and trample human rights, it also provides examples of how the people can resist. Even after a new Fugitive Slave Act made it a federal crime to assist Black people fleeing slavery in 1850, people continued to stand up for freedom. Journalists like William Lloyd Garrison relentlessly highlighted the illegitimacy of the Supreme Court’s racist rulings. State officials refused to assist federal slave catchers. Neighbors sheltered fugitives in their homes. And everyday people physically resisted attempts to arrest formerly enslaved people.  

Today, similar efforts are underway to resist immigration status-based caste systems. Progressive state officials are working to protect immigrant rights through a mix of litigation, legislation and administrative efforts. Journalists and thought leaders continue to explain how undermining rights and due process for immigrants makes all of us less free. And organizers in cities like Los Angeles have shown the power of direct resistance to immigration raids.  

The Court that condemned Margaret and her children to slavery didn’t get the final say because people resisted and, in some cases, disobeyed unjust laws and fought fiercely for what they knew to be right. That all people have value and no one deserves to live in fear. And that caste systems should have no place in our democracy.  

Ranked Choice Voting: Lessons in Democracy Reform from New York

In just a few weeks, on June 24, 2025, voters in New York City’s primary elections will use the ranked choice voting (RCV) method to select their parties’ nominees for the general elections later in the fall. This will mark the second time that the residents of America’s largest city will utilize this new system which was adopted in 2019.

In a typical ranked choice voting scenario, when no candidate wins more than 50 percent of the votes, the least scoring candidate is eliminated and their vote is awarded to their second-choice candidate and the process is repeated until someone scores more than 50 percent of the votes. In New York City, voters are allowed to rank up to five candidates on their ballot.

This system itself has become fodder for partisan disagreement: over the past three years, ten Republican states have banned the use of ranked choice voting in their jurisdictions and at a recent rally in Michigan to mark his first 100 days in office, Donald Trump sternly admonished his supporters never to accept the ranked choice voting method. Earlier, in January 2023, the Republican National Committee (RNC) officially adopted a resolution to oppose ranked choice voting.

The Critics’ Beef with Ranked Choice Voting

A recurring line of attack against ranked choice voting by its critics is the idea that the process creates confusion among the voters, a situation they claim could depress voter turnout, as insufficiently informed voters lose their enthusiasm for participation. Notably, this sentiment seems to be shared by both the official GOP and the smattering of Democrats who have publicly opposed the voting system, including local New York City politicians like Laurie Cumbo and John Liu, who expressed their criticism in the lead-up to the adoption of ranked choice voting for the city’s primaries in 2019. Indeed, during that adoption debate, Sid Davidoff, a prominent lawyer and lobbyist in New York City, further stoked the flames of opposition by reportedly deriding ranked choice voting as “truly trying to fix a system that wasn’t broken.”

The Empirical Evidence from New York City

However, the idea that ranked choice voting will confuse the voters and thereby depress their enthusiasm for the process has been clearly dispelled by the empirical evidence from the 2021 municipal primaries in New York City. In short, the fears have turned out to be rather overblown. According to figures released in May 2022 by the New York City Campaign Finance Board (CFB) in its 2021-2022 , voter participation surged by 29 percent in the mayoral election of 2021 at nearly one million voters compared to the 772,000 figure in 2013 (when ranked choice voting did not exist) with turnout increasing in 41 out of 44 contested races. Also, nearly 90 percent of city voters ranked more than one candidate in at least one race in their primary ballot.

During a forum on ranked choice voting, Joan Alexander-Bakriddin, the president of the Brooklyn chapter of the NAACP, acknowledged the voter confusion problem but noted that the use of ranked choice voting in 2021 not only increased voter turnout but also resulted in greater diversity in the people elected to office. For instance, women now hold a majority of seats on the 51-member New York City Council, thanks to the 2021 election. On voter confusion, Alexander-Bakridden suggested that the problem could be remedied by a “significant investment in outreach” measures to address such factors as an aging voter pool that was accustomed to the old method of voting as well as the language barriers that exist among the highly diverse New York City electorate.

The other less-talked-about benefit of ranked choice voting is the cost savings from not having to conduct run-off elections in a ranked choice voting regime. Thus, just because none of the candidates in an election scored more than 50 percent on the first ballot does not thereby doom the electorate to return to the polls for a re-do between the two top vote-getters. Nor will the said two top candidates have to go back on the hustings in search of run-off votes, as happens in a typical election as we know it. The “one-and-done” feature of ranked choice voting is a win-win for the candidates, the voters, and the public till. Eric Friedman, a senior public affairs official at the New York City Campaign Finance Board and moderator of the aforementioned forum, noted in remarks after the event that the cost savings from not holding a run-off were considerable. He also noted that the one-off election feature of ranked choice voting helped avoid the danger of voter fatigue, which could arise from having to ask voters to come back and vote again.

However, the City should not consider the job complete. In the interest of securing optimal results for healthier politics New York City should also adopting open primaries as a complement to ranked choice voting.

Conclusion

For all its benefits, it is worth noting that ranked choice voting is currently in use for various local races in just 52 jurisdictions across the country, with Alaska and Maine alone using it for statewide races. However, the positive experience of New Yorkers with ranked choice voting is particularly instructive given New York City’s position as the largest city and one of the most diverse in an increasingly diversifying country. Accordingly, the ranked choice voting formula has certainly earned the right to be tested more broadly in American elections, beginning with expanding its use to cover more than just New York City’s primary elections.

Thus, it well behooves democracy reform advocates in the progressive community nationwide to promote this promising electoral innovation across the country to give more Americans an opportunity to assess its benefits for themselves. Chances are they will like what they see.

Carl Unegbu, a lawyer and journalist, serves as a vice chair of the New York Chapter of the American Constitution Society. He can be reached at ocarls@yahoo.com.

The Sinking Fund Precedent: An Originalist Defense of Regulatory Independence

“The executive Power shall be vested in a President of the United States." With these words from Article II, President Trump has launched a constitutional revolution that threatens the structure of American governance. In a breathtaking display of executive power, Trump has summarily dismissed Federal Trade Commission Commissioner Rebecca Slaughter, National Labor Relations Board Chair Gwynne Wilcox, and Merit Systems Protection Board Chair Cathy Harris—officials who, by statutory design and longstanding practice, were protected from precisely such political removals.

This is no mere bureaucratic reshuffling. It represents nothing less than a frontal assault on the constitutional architecture that has structured our government for generations. What's at stake? The President's ability to manipulate interest rates before elections by firing Federal Reserve governors. The power to punish media companies by removing FCC commissioners who don't favor the President's allies. The capacity to neuter election enforcement by dismissing FEC commissioners who insist on applying campaign finance laws to the President's supporters.

This constitutional crisis arrives with a supreme irony: the architects of this "unitary executive" revolution claim the mantle of originalism while ignoring or dismissing compelling evidence from the founding era itself. The Constitution they invoke bears little resemblance to the document ratified in 1789 or the government established under it. Far from commanding absolute presidential control over all administration, America's founding texts and practices tell a far more nuanced story—one that legitimizes meaningful limits on presidential control over certain regulatory functions.

Let us unfold this constitutional tale, one that begins not with modern bureaucrats but with the Framers themselves.

Originalism and the Weakly Unitary Executive

Advocates of a "strong unitary" executive branch insist that Article II's vesting of executive power in "a President of the United States" and the Take Care Clause command absolute presidential control over all executive functions, including plenary removal authority over every official exercising administrative power. Under this view, any congressional attempt to insulate an official from at-will removal by the President is presumptively unconstitutional.

But this absolutist reading is more spider's web than constitutional bedrock, a selective rather than faithful reading of what the Constitution requires, as Justice Holmes feared. Originalist interpretation demands we examine not just isolated constitutional phrases, but how the founding generation interpreted and implemented them. And here, the historical record offers compelling evidence for what I call a "weakly unitary" executive—one where Congress has meaningful authority under the Necessary and Proper Clause to structure administration in ways that secure good governance while respecting presidential authority.

Consider the text itself. Article II vests "the executive Power" in a President but tells us precious little about what constitutes "executive power" or how it must be exercised. The Opinion in Writing Clause explicitly gives the President authority to "require the Opinion, in writing, of the principal Officer in each of the executive Departments," but if the President already possessed absolute control over all executive officers, why would the Framers specify this particular power? The Constitution's explicit enumeration of this presidential prerogative strongly suggests the President's authority over administration was understood to have meaningful limits.

The Sinking Fund Commission: America's Original Independent Agency

The smoking gun in this constitutional debate—one that advocates of the strong unitary executive theory consistently underplay—is the Sinking Fund Commission established in 1790 by the First Congress and signed by President George Washington. This early institution, created to manage the repayment of Revolutionary War debt, represents nothing less than an originalist precedent for administrative independence.

What was the Sinking Fund Commission? Created by statute in August 1790, it constituted a five-member board that included the Secretary of the Treasury (Alexander Hamilton), the Secretary of State (Thomas Jefferson), the Attorney General (Edmund Randolph), Vice President John Adams, and Chief Justice John Jay. This Commission controlled the disbursement of funds that Congress had already allocated to repay the national debt.

The historical context is crucial. In England, sinking funds had a poor track record because political actors routinely raided them for other spending purposes. Hamilton's writings explicitly acknowledged this concern and emphasized the need for "inviolable application" of funds set aside for debt redemption. To achieve this independence from potential executive interference, Congress deliberately structured the Commission with ex officio members that the President could not unilaterally remove from their underlying positions.

This matters immensely. The President had no constitutional authority to remove the Chief Justice or the Vice President from their offices and therefore had no power to replace these officials on the Commission. This was a deliberate feature, not a bug—the Commission was intentionally structured to prevent the President from unilaterally controlling the disbursement of these congressionally-allocated funds.

Consider the practical implications: If the President wished to divert these funds for other purposes (perhaps to fund a war or meet some other emergency), he could not simply replace Commission members until he found those who would approve his preferred expenditures. The Commission's independent structure ensured that money allocated for debt reduction would actually be used for that purpose.

This structure bears a striking resemblance to modern independent agencies. Just as the Federal Reserve's independence enables monetary policy to function without short-term political interference, the Sinking Fund's independence protected fiscal policy from presidential pressure. In both cases, the core constitutional value at stake is preventing the consolidation of too much financial power in presidential hands—a concern deeply rooted in republican principles dating to 1790.

Importantly, this wasn't some minor experiment or constitutional aberration. Washington signed this law without constitutional objection. John Marshall and James Madison served on the Commission in later years without raising constitutional concerns. The Sinking Fund remained a core institution of American governance for decades, with its basic independence-protecting structure intact.

Beyond the Sinking Fund: A Pattern of Early Administrative Experimentation

The Sinking Fund Commission was not an isolated case but part of a broader pattern of administrative experimentation in the early republic that belies the strongly unitary executive theory.

Consider the Post Office under President Washington. Established by the Post Office Act of 1792, this institution became one of early America's largest and most important administrative agencies. Crucially, while the Postmaster General served at the pleasure of the President, the vast network of local postmasters enjoyed a significant degree of practical independence. The Act contained detailed instructions for postmasters and postal operations that constrained presidential discretion. Local postmasters were understood to have protection from politically-motivated interference, as they performed functions requiring neutrality and trustworthiness. Washington himself recognized these constraints, never asserting unlimited control over postal operations.

The First Bank of the United States, championed by Hamilton and approved by Washington, likewise operated with meaningful independence from direct presidential control. Its directors, while nominated by the President, functioned with significant autonomy in making monetary and fiscal decisions—an arrangement that resembles modern financial regulatory agencies.

During the Civil War and Reconstruction, this pattern of administrative experimentation continued. The Freedmen's Bureau, established in 1865, represents another historical precedent for independent administration. Created to assist formerly enslaved people's transition to freedom, the Bureau exercised a remarkable range of functions—distributing food and medical supplies, establishing schools, supervising labor contracts, and even adjudicating disputes. While nominally within the War Department, the Bureau operated with considerable autonomy to fulfill its humanitarian and administrative mission.

As legal historian Jerry Mashaw has meticulously documented in his book "Creating the Administrative Constitution," the early republic witnessed a diverse array of administrative structures that didn't conform to a strong unitary model. The First Congress routinely enlisted judges and private parties to check executive officers' conduct in various capacities.

These historical practices reveal that the Constitution's original public meaning allowed for substantive congressional structuring of administration, including independence-protecting features in certain contexts. This doesn't mean Congress could create unlimited obstacles to presidential control—the Constitution clearly establishes a single chief executive with broad supervisory powers. But it does mean the Constitution's framers understood executive power in more nuanced ways than modern unitary executive proponents suggest.

Humphrey's Executor and Constitutional Evolution

The Supreme Court's 1935 decision in Humphrey's Executor v. United States, upholding the independence of the Federal Trade Commission, is often portrayed by unitary executive theorists as a radical departure from original understanding. But in light of the historical evidence, it's more accurately understood as a recognition of constitutional practices dating to the founding.

True, the FTC of 1935 was not identical to the Sinking Fund Commission of 1790. But both institutions reflected similar constitutional principles: that certain governmental functions benefit from insulation from direct presidential control, that Congress has authority under the Necessary and Proper Clause to structure administration accordingly, and that such structures don't fundamentally undermine the President's ability to fulfill constitutional obligations.

In Seila Law v. Consumer Financial Protection Bureau (2020), Chief Justice John Roberts attempted to distinguish Humphrey's Executor on the narrow ground that it involved a multi-member commission rather than a single director. But this distinction finds little support in constitutional text or original understanding. The Sinking Fund precedent suggests that what matters constitutionally is not the number of heads, but the nature of the function being performed and the structural needs of good governance.

The Constitutional Stakes of Today's Removal Controversy

President Trump's dismissals of independent agency officials is not merely a technical dispute over removal authority—it represents a frontal assault on the constitutional understanding that has structured American governance for generations. If validated by the courts, it would concentrate unprecedented power in presidential hands, allowing the President to exercise direct control over monetary policy, fair competition, labor relations, and election administration.

Consider the FTC specifically. Commissioner Rebecca Slaughter was dismissed not because of "inefficiency, neglect of duty, or malfeasance in office"—the statutory standard that has protected commissioners' independence for generations—but rather because her policy views diverged from the President's. If this stands, future presidents could dismiss Federal Reserve governors who refuse to lower interest rates before elections, FCC commissioners who don't favor the President's political allies in media regulation, or FEC commissioners who insist on enforcing campaign finance laws against the President's supporters.

This is precisely the concentration of power that the founding generation feared and designed institutions to prevent. The Sinking Fund Commission was created precisely because the founders understood that certain governmental functions required insulation from direct presidential control to function effectively. Modern independent agencies serve this same constitutional purpose.

Presidential Practice and Constitutional Settlement

Proponents of the strong unitary executive theory sometimes claim that presidents have consistently opposed independent agencies throughout American history. But the historical record tells a different story. Between Franklin Roosevelt (who did challenge the FTC's independence in Humphrey's Executor) and Donald Trump, no president explicitly argued that independent agencies were unconstitutional or claimed the power to remove commissioners at will.

Instead, presidents from both parties have appointed commissioners, respected statutory removal protections, and worked within the established framework of independent agencies. Even when presidents chafed at particular agency decisions, they did not assert constitutional authority to simply fire commissioners whose policy views they disliked. This consistent executive practice represents a form of constitutional settlement that deserves significant weight in constitutional interpretation.

The fact that presidents and Congress have continued to create and maintain independent agencies, within the basic framework established by Humphrey's Executor, reflects a constitutional understanding that has been woven into the fabric of American governance. This doesn't mean the Court must slavishly follow every aspect of this practice, but it does suggest that the core constitutional principle—that Congress can create agencies with meaningful independence from direct presidential control—has been accepted by all three branches of government for generations.

A Path Forward: Preserving Constitutional Balance

How should courts resolve this controversy? By recognizing that the Constitution permits varied administrative structures based on the function being performed and the needs of good governance. This approach respects both original understanding, as exemplified by the Sinking Fund Commission, and the constitutional settlements that have developed over time.

Some agencies and functions properly belong under direct presidential control. Others—particularly those involving monetary policy, market competition, or fair elections—benefit from meaningful independence. The key constitutional question isn't whether all executive power must be subject to presidential control, but rather what kinds of structural arrangements best serve constitutional values while preserving the President's ability to fulfill constitutional obligations.

This approach would uphold the independence of multi-member regulatory commissions like the FTC, FCC, SEC, and Federal Reserve, while perhaps finding more direct presidential control appropriate for certain single-headed agencies or those exercising core foreign affairs and national security functions. It would respect Congress's authority to structure administration under the Necessary and Proper Clause, while preserving the President's constitutional role as chief executive.

In the specific cases now percolating through the courts, this approach would likely find Trump's dismissal of FTC and NLRB commissioners unconstitutional, as those officials serve on multi-member bodies with statutory protection from at-will removal. For the Merit Systems Protection Board Chair, the question would turn on the specific nature of that office's functions and its structural relationship to core executive powers.

Conclusion: Constitutional Fidelity and Constitutional Balance

The debates over the unitary executive theory aren't merely academic—they go to the heart of how our constitutional democracy functions. A proper originalist approach recognizes that the Constitution's framers created a chief executive with significant powers, but did not envision a president with unfettered control over all administration. The Sinking Fund Commission stands as compelling evidence that the founding generation understood congressional authority to include the power to create administrative bodies with meaningful independence from direct presidential control.

The Constitution's core values—preventing the concentration of too much power in any one branch while enabling effective governance—are best served by preserving the constitutional balance that independent regulatory commissions represent. Courts should reject extreme claims of presidential removal power and instead reaffirm the constitutional understanding that has structured American governance since the republic's earliest days: that certain governmental functions, properly authorized by Congress, may be performed with a measure of independence that serves rather than undermines our constitutional design.

Mauni Jalali is an Associate at Quinn Emanuel Urquhart & Sullivan, LLP. A graduate of Yale Law School, Class of 2022, he previously worked for the Senate Judiciary Committee and was a law clerk for the Honorable John C. Coughenour. He is a member of the American Constitution Society.

The Legal Battle Over Liberal Democracy

With heightened political confrontations, the role of the judiciary as the guardian of liberal democracy faces growing scrutiny in the United States. The Trump administration's revolutionary push to dismantle the "deep state" raises critical questions about the interplay between executive power and judicial oversight. America can draw lessons from Europe; both its history in the twentieth century and in the recent battle over the rule of law in states like Hungary and Poland. But the American people must not put all its confidence in the judiciary. Without support from the people and its politicians, liberal democracy and the rule of law is at peril.

Ten years ago I wrote Judges Against Justice, a book that explored concrete situations in which judges are faced with a legislature and an executive that consciously and systematically discard the ideals of the rule of law. Little did I know that only 10 years later, the study would be relevant for an analysis of developments in the United States. Using the examples of Nazi Germany and western European countries under the regime’s control during World War II, South Africa under apartheid, and military dictatorships in Argentina, Brazil, and Chile, the book examined the endurance of the rule of law when under attack.

Methods of undermining the rule of law

Authoritarian rulers have used appointment of sympathetic judges through purges of the judiciary and court packing, reorganization of the court system, and the establishment of special courts to compel the submission of judges. Another important measure deployed by these regimes was to limit access to the courts by limiting the scope of the competence of the courts to review acts and decisions by organs and agencies of the state.  When handpicking judges and limiting the scope of judicial review did not suffice, there were other means at their disposal. Authoritarian regimes rely on a wide range of mechanisms to convince, persuade, and coerce judges to apply their legal minds to the benefit of the regime. Finally, an authoritarian regime will often just plainly disregard legal rulings that run contrary to their policy.

Taken together, these measures constitute a script or a textbook for rulers who aim to undermine the rule of law. Measures taken by the Trump administration seem to be straight out of such a script. They seek to limit the scope of judicial review over measures enacted by or at the order of the president, they handpick judges and threaten to remove others, they attack and harass individual judges, and they disregard rulings that hamper the execution of their policies.

Limiting the jurisdiction of the judiciary

Trump’s post of February 15 on Truth Social and on X, “He who saves his Country does not violate any Law,” is well known. This has by observers been taken as a claim of power to override legal limits. A few days earlier, Vice President Vance had posted to his account on X that “Judges aren’t allowed to control the executive’s legitimate power.”

Trump repeated this view after a judge ordered the Trump administration to cease use of an obscure wartime law to deport Venezuelans without a hearing, saying that any deportation flights that had departed the United States needed to return. The case turned into a legal battle over whether the administration had complied with this order or not, as two planes with deportees landed in El Salvador well after the judge had issued his order.

Reacting to inquiries by the judge, Trump posted on his social media: “If a President doesn’t have the right to throw murderers, and other criminals, out of our Country because a Radical Left Lunatic Judge wants to assume the role of President, then our Country is in very big trouble, and destined to fail!”

The government keeps arguing that judges are overstepping their jurisdiction when they put a check on executive powers. Constitutional lawyers of the right are arguing the doctrine of “departmentalism—the Founders’ view that the officers of each branch of government have a duty to interpret the Constitution as they understand it.” Even decisions of the Supreme Court are not truly the final word on constitutional interpretation under this doctrine.

Selection of loyal judges – and deselection of the disloyal

Political appointment of judges is a well-established system of the United States federal order. Extensive research suggests that how judges are selected has significant implications for judicial independence and decision-making. Trump is well aware of that. The republicans managed by cleaver maneuver and luck to appoint three judges to the Supreme Court during  first presidency; Gorsuch, Kavanaugh and Barett.  Trump also extended the politization of appointments to the entire federal judiciary (Abel p. 218).

After a ruling that went against him, Trump blasted the judge, Jon S. Tigar, as a biased “Obama judge. This resulted in a rebuke from Chief Justice Roberts. In response, Trump tweeted on X that “you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.” In the recent controversy over the deportation of Venezuelans, Trump denounced Judge James Boasberg as an Obama appointee.

The other side of the coin when it comes to the selection of loyal judges is the deselection of judges who oppose. In the same Truth Social post targeting Judge Boasberg, President Trump stated that the judge should be impeached. Republicans in Congress have announced plans to impeach several judges.  Beyond Boasberg, they’ve announced plans to impeach: Judge John McConnell, who halted the administration’s blanket funding freeze; Judge Amir Ali, who resumed foreign aid payments; Judge John Bates, who restored scrubbed online health data; and Judge Paul Engelmayer, who prevented Elon Musk from accessing Treasury Department payment systems.

Attacks and harassment

President Trump himself has chided and harassed individual judges on social media. His Truth Social post calls Judge Boasberg a “Radical Left Lunatic Judge”. He has called Judge Tanya Chutkan in Washington, D.C.  “the most evil person” and Judge Arthur Engoron of the New York Supreme Court a “political hack.” Such public rebukes are dangerous as they incite and encourage threats and attacks on judges. Chief Justice Roberts addressed such attacks on judges in the 2024 Year End Report on the Federal Judiciary, mentioning (1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments as ongoing threats to judicial independence.

Judges and prosecutors have repeatedly been facing threats of violence as they handle cases related to Trump. The voluntary Federal Judges Association has issued a statement regarding a rise in criticism, threats and violence aimed at members of the judiciary.  They state that “Irresponsible rhetoric shrouded in disinformation undermines the public’s confidence that our justice system can fulfill its constitutional duties.”  This underlines the seriousness of posting abuse of judges on social media by the leader of the administration.

Defiance of judgments

Judicial independence is undermined unless the other branches are firm in their responsibility to enforce the court’s decrees, Chief Justice Roberts states in the 2024 report. We have seen many instances of the Trump administration evading legal orders and even outright defiance. In many cases the administration finds legal sidesteps, such as claiming that they have reviewed cases of termination individually after a judge’s freeze order, that they have other legal basis for not fulfilling payments that have been ordered resumed and so on. The result is that many of the judicial restraining orders put on government measures have been without effect.

Towards the Dual State

The push for executive power and limiting  of the courts’ jurisdiction are reminiscent of what the German-American lawyer and political scientist Ernst Fraenkel in 1941 labelled the Dual State. The dual state is a mode of governance where tyranny expands and rules without a dismantling of the courts and with independent judges performing their functions as before.

Central to Fraenkel’s theory is the prevalence of what he called the normative state despite the rise of the political and oppressive prerogative state. By the prerogative state Fraenkel referred to the “governmental system which exercises unlimited arbitrariness and violence unchecked by any legal guarantees”, and by the normative state “an administrative body endowed with elaborate powers for safeguarding the legal order as expressed in statutes, decisions of the courts, and activities of the administrative agencies”.   Both existed simultaneously, but the normative state existed under the acquiescence of the prerogative state. The prerogative state defined its own limits and could overrule decisions made within the normative state.

This is the end of the rule of law. In the dual state, there are no limits to the powers of the government other than those it chooses to accept, with the pretense of government by the rule of law being upheld within the normative state. The Dual State is a theory that has been proven in many historical instances with well-functioning judiciaries, such as Italy, Germany, South Africa, Chile, Brazil, and Hungary.

The role of judges

Americans should be worrying about a coup, and presently the only thing that may prevent one is if judges stand up to Trump and civil society and enough members of Congress join. But is it enough? Judges often initially react to attempts by the executive to assert unlimited power. Unknown to many, this was even the case in Germany after the violent Nazis came to power. It is well known the judiciary was subdued and became the “horrible lawyers” in the words of the German author Ingo Müller.

What is less noticed was that in the beginning the new regime did meet with some opposition from the judiciary. A cause célèbre is the case of the Reichsgericht after the fire in the Reichstag on December 23, 1933, where four of the five accused were acquitted by the court due to the lack of evidence. The four were known communists, and Hitler and Göring were expecting a show trial to do away with political opponents.

The Prussian Administrative Court held onto the principle of legality for some time by interpreting both old laws and laws passed by the Nazi regime narrowly, thereby curbing the power of the authorities. The Prussian Administrative Court maintained this line throughout the 1930s and until the court was abolished in 1938 and replaced with a Reich Administrative Court.

Initially, prosecutors and judges reacted against the misuse of power and the atrocities in the Concentration Camps. In 1935, however, Hitler confirmed that the camps could operate outside of the law, pardoning the SS men. This brought an end to legal proceedings in regular courts against operations in the camps.

In the first years, there were several instances where judges refused to apply the Nazi anti-Semitic worldview and continued to treat Jews as ordinary legal subjects. This even prevailed as late as in 1941 in the famous Berlin coffee case. Willi Seidel, a judge of one of Berlin’s county courts, refused to fine 500 Jews who had tried to collect coffee after the city authorities had announced extra coffee rations for the population. He was expelled from the Party and moved from the criminal to the civil bench due to his “lack in political attitude through a serious misconception of the Jewish issue.”

It is crucial to American democracy that judges keep up their resistance against the expansion of presidential powers. As the battle intensifies, more severe attacks on judges and the judiciary must be expected. The fear that judicial orders will be circumvented or disregarded may lead judges to exercise undue caution in challenging the president. A Supreme Court majority sympathetic to Trump’s agenda may effectively silence the rest of the judiciary.

The Spirit of Liberty

The future of liberal democracy in the United States is at stake. Judges are an important line of defense, and their actions in the near future will be decisive for the future of the United States. This may require courage as the pressure on the judiciary and on individual judges increases. The hope is that there are enough heroic judges in the federal judiciary.

But judges cannot win the battle alone. In the spirit of the brave judges of Poland, they must unite. The recent initiative from the federal judiciary creating a task force is encouraging.  The legal profession and the bar must engage in support of the judiciary and the rule of law. The ABA issued a statement several weeks ago. In addition, lawyers should mobilize in support of law firms targeted by Trump’ sanctions, and meet them with a collective boycott of work for the federal government. A free legal profession, without interference by the government, is essential to the rule of law.

What one should really like to see is people taking to the streets in support of judges. This might seem a long shot, but as the enduring protests in Israel have shown, it is not unthinkable. The Polish judges were supported in their battle by civil society organizations, along with people in the streets.

One is well advised to head the words of a former well-known American judge, Learned Hand, in his Spirit of Liberty speech of 1944:

“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”

Hans Petter Graver is professor of law at the University of Oslo, Norway. His fields are administrative law, sociology of law and legal ethics. He has written extensively in all these fields. His latest books are Valiant Judges, Iniquitous Law and Democracy and Lawlessness: The Penitentiary Laws and Civil Disobedience in Norway 1928-1931. He is member of Academia Europeae.

 

Environmental Justice is Not About “Them.” It’s About All of Us.

By Sharmila L. Murthy, Jalonne L. White-Newsome, Marianne Engelman-Lado, Natasha DeJarnett, Shelby Benz, Aruni Ranaweera, Allison Rogers, and Christina Bowman

Imagine that the very air you breathe is so toxic it makes you sick. Or that your children suffer developmental delays because they are unknowingly exposed to lead through the water they drink or the paint in their homes. This is the reality that millions of Americans face every day—and it is what environmental justice is all about.

Through our prior efforts at the White House Office of Environmental Justice and the Environmental Protection Agency (EPA) Office of Environmental Justice and External Civil Rights, we worked hard to make the nation a cleaner and safer place for everyone. Now, the Trump Administration is taking a wrecking ball to important longstanding environmental and health protections. It is shuttering federal offices across the country that serve overburdened communities. It is trying to fire longtime public servants who help ensure that our air, water, and neighborhoods are safe. The Trump Administration is giving polluters free reign to pollute, which will raise health costs for all and cause pain across our nation. For political expediency, the Trump Administration is distorting the meaning of environmental justice.

Environmental justice means that all people—not just the privileged—should be able to breathe clean air, drink safe water, and live in an environment that is free from harmful pollution and chemical exposures. Regardless of who you are and where you live, you should be treated justly and be given the chance to have a say in government decision-making that impacts your health and environment.

The Trump Administration cannot stop the environmental justice movement. Over the last half-century, communities fighting for fairness and equal protection against pollution have galvanized this movement. In the 1980s, residents of Warren County, North Carolina protested and put their bodies on the line to stop the construction of a hazardous waste landfill in a Black neighborhood in one of the poorest counties in the state. In 2014, the nation watched in horror and mobilized as residents of Flint, Michigan learned that their drinking water was contaminated with lead after a state-appointed emergency manager switched the water supply from Detroit’s system to the Flint River.  Even today, residents displaced from Mossville, Louisiana suffer health consequences from the dozen or more industries that continue to surround their community. But, rather than try to improve the lives of people living near polluting facilities, the Trump Administration is dropping enforcement actions intended to protect people’s health. It is carelessly rolling back longstanding federal environmental and health advancements, jeopardizing the well-being of people across our nation.

Communities will no longer share in prosperity from federal investments that could expand infrastructure, produce jobs, build resilience to extreme weather events, and keep families healthy. The Trump Administration is dismantling the historic Justice40 Initiative, which sought to direct forty percent of the overall benefits of federal investments related to climate, energy, water, housing, transportation and other areas to disadvantaged communities. This will hurt communities in blue and red states. In fact, red states and GOP congressional districts have benefitted most from the largest investment in climate and clean energy in human history through the Inflation Reduction Act and the Bipartisan Infrastructure Law.

The public now has less access to important tools that allow you to understand the health of your community. The Trump Administration has taken down important datasets and mapping tools, like the Climate and Economic Justice Screening Tool and EPA’s EJScreen. The Trump Administration has also dismantled key research drivers, like the National Science and Technology Council’s Environmental Justice Subcommittee, which issued a groundbreaking report last year called the Environmental Justice Science, Data, and Research Plan.

We are now in an era of disinformation and disrespect for the rule of law and the basic tenets of democracy. The Trump Administration is destroying initiatives that sought to promote accountability and transparency, such as the Environmental Justice Scorecard, which provided the public with key information on agency progress towards health and environmental protection. The Administration has also sought to silence important expert voices on environmental health and protection by dissolving the White House Environmental Justice Advisory Council, which had been created in 2021, and the National Environmental Justice Advisory Council, which had provided recommendations to EPA since 1993.

We all now have work to do to keep our families and communities safe. Write to your elected representatives and let them know that you stand for greater health and environmental protections for all. Let your elected officials know that you do not support the Trump Administration’s dangerous agenda. Tell your state and local leaders to develop stronger laws, regulations and programs on environmental justice –- even using federal actions, such as the National Environmental Policy Act (NEPA) regulations, issued in May 2024, or Executive Order 14096 on Revitalizing Our Nation’s Commitment to Environmental Justice for All, signed in April 2023, as models for renewed action. Volunteer with your local environmental and environmental justice organizations. Be a champion for environmental justice.

Despite the Trump Administration’s rhetoric, environmental justice is not about “them.” It's about making sure no child is exposed to lead in water. It's about making sure that no family fears that the air they are breathing is poisoning them. It’s about all of us.

Marianne Engelman-Lado served as the Acting Principal Deputy Assistant Administrator of the Office of Environmental Justice and Civil Rights at EPA, among other roles. All the other authors worked at the White House Office of Environmental Justice during the Biden-Harris Administration under the leadership of then-Federal Chief Environmental Justice Officer, Dr. Jalonne L. White-Newsome. Sharmila L. Murthy served as Director for Environmental Justice; Dr. Natasha DeJarnett served as Deputy Director for Environmental Justice Data and Evaluation; Shelby Benz served as Special Assistant for Environmental Justice; Aruni Ranaweera is a graduate student at Harvard Kennedy School of Government who interned with the office; Allison Rogers served as Director for Environmental Justice Public Engagement; and Christina Bowman served as Deputy Director for Environmental Justice, and then as the Chief of Staff at the White House Office of Domestic Climate Policy.

 

 

Law School Deans Have a Moral Imperative

President Donald Trump's public targeting of law firms and universities that oppose him or disagree with him is a direct assault on the rule of law in the United States.

Over the weekend, Trump issued a memo directing the Justice Department to root out political opponents who use the law to challenge his actions. Trump’s memo is designed to intimidate lawyers who represent the administration’s legal and political opponents, so that Big Law will drop any challenges to Trump out of fear they will lose clients, and smaller firms will look at their balance sheets and turn elsewhere.

This weekend’s memo is part of a larger systematic effort. Trump’s first executive order targeting law firms barred the federal government from using Perkins Coie and suspended its attorneys' security clearance because—as the executive order explicitly stated—it represented political opponents. Trump issued a similar executive order targeting Covington & Burling because they provided legal assistance to Special Counsel Jack Smith. A third executive order was then issued targeting Paul Weiss for its association with two attorney who assisted investigations of Trump by Special Counsel Robert Mueller and Manhattan District Attorney Alvin Bragg, as well as representing parties suing January 6th insurrectionists. The most recent memo is designed to put government muscle and staffing behind his threats. All of these actions taken together are designed to turn rule by law into rule by a man.

Law school deans have a key role right now. They must clear their calendars, stop fundraising, stop meeting with students, get their lawyers ready, tell their Presidents that they are willing to be fired rather than stay silent, coordinate with each other, and come out with a strong and clear statement condemning the attack on the rule of law and refusing to capitulate to any demands from the administration that would undermine their institution’s academic freedom or the rule of law.

Individual tweets and email chain letters are frankly not that important or effective; institutions and those that lead them must speak up, and there is no more obvious institution than law schools and no leader more obvious than law school deans. Yet of the hundreds of law school deans in the country, I have counted only two--Georgetown Law Dean William Treanor and Berkeley Law Dean Erwin Chemerinksy--who have publicly denounced the administration’s actions.

But 99 percent of the roughly 200 or so law school deans in the U.S. have been conspicuously silent.

Trump’s intimidation campaign is working and, in the process, destroying the credibility of academic institutions and the legal profession.

Columbia agreed to the terms Trump set in his federal funding blackmail and are creating “oversight” for a disfavored academic department. Trump will not be President in four years, but Columbia has made it clear that it will bend to the will of power. Whether the new President is Republican or Democrat, Columbia has broadcast to the world that ideological oversight of academic research is something they will barter.

Paul Weiss, targeted because of its association with attorneys who worked on the investigations of Trump by Special Counsel Robert Mueller and the Manhattan District Attorney, agreed to abandon its internal diversity and inclusion policies and support his pet causes with $40 million in "pro bono" services.

At least in part because of Paul Weiss’s example, thousands of other lawyers and law firms are complying in advance, though we may not know their names. I have heard from one public defender that the law firms who once would say yes to pro bono federal death penalty cases are now turning those cases away.

It should go without saying that the rule of law depends on the ability of legal professionals to represent clients without retribution and on universities to be independent institutions, not tools of the most recently elected President.

Trump’s chilling message to the legal community about the potential consequences of representing clients the President does not like or to universities about teaching ideas the President does not agree with is awful and authoritarian for sure. But more chilling is the silence his actions have been met with; we tacitly accept the President's terms. This is not a court of law, where one is innocent unless proven guilty, and there is a right to remain silent; this is the court of public life, where silence is itself immoral.

Georgetown Law's Dean William Treanor exemplified leadership by rejecting a federal prosecutor's warning to change the language and policies of Georgetown Law, holding up the First Amendment and Ignatian principles against a blatant attempt at blackmail. Berkeley Law Dean Erwin Chemerinksy also exemplified this leadership by writing in the New York Review of Books about how Trump’s Columbia threats were unconstitutional and dangerous. Obviously, law school deans understand the nature of the attack, and that it is more than a threat; it is the destruction of the rule of law itself.

But most are choosing to keep silent, likely out of fear that retribution will be visited on their students or their university. I believe their care is serious, and their love for their universities is genuine, but at some point—and we've passed that point—the obligation has to be to law and academic independence.

Students should pressure their deans. Faculty should pressure their deans. Alumni should call their deans. Reporters should ask deans questions at public events. The obligation to the rule of law is more fundamental than the obligation to any individual institution, and the human cost of living in a society in which law is available to those who are friends to power, and dare not criticize it, is enormous.

If law school deans will not speak up, how can they expect law firms to speak up? How can they expect Big Law not to keep making corrupt deals? How can they expect plaintiffs' lawyers to be brave? How can they expect nonprofits, terrified of retribution, risk getting their tax status investigated? How can they expect businesses to speak up, when they risk retribution that would damage all their employees? Do law school deans plan to teach students that law is just a trade and not a solemn obligation?

When there is silence, it will be hard not to infer that the Law Schools are obeying quietly, shifting resources, directing students towards firms that don’t irritate Elon Musk. Regardless of what they are actually doing, they are leading by example, and letting students know that when their integrity, professionalism, and ethics as a lawyer are challenged by the politically powerful, it is better not to take a risk.

Law school deans across the nation must collectively affirm their commitment to upholding the rule of law and protecting the autonomy of educational institutions. They need to defend their own institutions as places worth saving but also make possible the things that thrilled their hearts when they were young lawyers–free speech and the vision that all people are treated the same under law, regardless of their connections or politics.

And if Trump does respond by trying to pull funding, all of us need to be there ready to pull the oars to stop him. If law school deans have to quit to feel comfortable speaking out, we should be ready to support them. If they are forced out, we have to be ready to stand with them.