I have never been more concerned about the rule of law in the United States.
I was born in 1969 — five years after the Civil Rights Act was passed — and I have no memory of the legal system operated in the Jim Crow South, when there was one code of justice for white Americans and a different set of laws for Black Americans. The very idea of justice in the old Confederacy was a sad joke. The white establishment took care of its own.
There was a distinct moment on Monday night when I stopped taking various legal notes on President Trump’s executive orders and realized that we may well be facing a different game entirely — one far more reminiscent of the Old South than any system of American justice I’ve experienced in my lifetime.
We’re still far from those dark days, but we’re walking in that direction. Trump’s mass pardons and commutations of Jan. 6 insurrectionists and his revocation of John Bolton’s security detail have changed the calculus.
Let’s be clear about what Trump did here. Bolton has faced threats from an American enemy, the Islamic Republic of Iran. In fact, he was the target of an assassination plot by a member of the Islamic Revolutionary Guards Corps in 2022. At the same time that he was taking away Bolton’s Secret Service protection, Trump granted absolution to men and women who violently attacked the seat of American government and tried to foment a rebellion against the lawful, constitutional government of the United States.
Trump’s pardon broke with recent presidential precedent in two important ways. First, while numerous presidents have issued embarrassing, abusive and potentially corrupt pardons, Trump pardoned people who committed acts of political violence on his behalf. He pardoned the seditious shock troops of an attempted coup.
Second, he issued the pardons on Day 1. The worst presidential pardons are typically issued when a president is on his way out the door. They’re a last-minute indulgence for family, friends, fund-raisers and political allies, granted when the president’s political career is over.
That’s what Joe Biden did. His pardon of his son Hunter was understandable from a paternal perspective (what father wants to see his son in prison?), but it was inexcusably unprincipled. Hunter was guilty of federal crimes. He should have served his sentence.
Biden’s pre-emptive pardons of his family members — at least one of whom engaged in decades of unscrupulous business dealings trading on the family name overseas — were also understandable (Trump has pledged vengeance against people he considers his political foes) but troubling. The pardon power does not exist to place a zone of immunity over the president’s family.
But Trump’s opening-day pardons were something else entirely. He was sending two messages. First, membership in the MAGA movement has its rewards, and one of them is freedom from the law itself. The attack on the Capitol was an act of vicious political violence, and now its shock troops and architects are posing for triumphant pictures and celebrated across the length and breadth of MAGA America.
To millions of Americans, they’re not criminals. They’re heroes.
The second message was equally chilling. Oppose Trump — as Bolton did — and he’ll leave you exposed. The domestic enemy has to pay the price, even if it means the foreign enemy may have greater access to an American target.
You might wonder why Trump’s pardons and Trump’s decision to end Bolton’s security detail had any impact on my analysis of Trump’s executive orders. At first glance, they’re completely separate actions that should be evaluated on their own merits. After all, what does a legal analysis of, say, birthright citizenship or the TikTok ban have to do with the political scandal of abusive pardons?
A lot, it turns out.
Let’s briefly make our way through Trump’s birthright citizenship order. It’s extraordinarily broad. It doesn’t just block citizenship for children of illegal immigrants, it also blocks citizenship for children whose parents are legally present in the United States if they don’t have permanent status when their child is born.
This contradicts the language of the 14th Amendment, a controlling federal statute and Supreme Court precedent. The 14th Amendment says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
Children of illegal immigrants are quite plainly subject to American jurisdiction. They’re bound by American law every moment they’re on American soil. As Steve Vladeck, a law professor at Georgetown, explained in an excellent and comprehensive Substack post, the phrase “subject to the jurisdiction thereof” was meant to exclude children of diplomats, children of Native Americans who were subject to tribal sovereignty, and “children born of alien enemies in hostile occupation.”
These principles were outlined in an 1898 Supreme Court case called United States v. Wong Kim Ark. But one doesn’t have to rely entirely on a precedent more than a century old. As Vladeck points out, in a 1982 case called Plyler v. Doe, the court held that “no plausible distinction with respect to 14th Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”
Three years later, in Immigration and Naturalization Service v. Rios-Pineda, the court observed that the undocumented immigrant parents in the case “had given birth to a child, who, born in the United States, was a citizen of the country.”
Trump may try to claim in court that undocumented immigrants are an invading, occupying force. Indeed, one of the executive orders he signed after taking office asserted that America is facing an “invasion” at the hands of migrants on its borders. Can he deem them hostile occupiers and deny their children citizenship?
No. As James Madison said in The Report of 1800, the term “invasion” applies to an “operation of war.” Any other reading of the term reaches an absurd and dangerous result. If economic migrants are “invaders,” can they be targeted with drone strikes? Gunned down at the border by the 82nd Airborne Division? Can we suspend habeas corpus to stop immigrants? Obviously not. Several federal courts of appeal have reached the same, sensible conclusion. Illegal immigration is not an invasion.
I can undertake a similar legal analysis of many of Trump’s executive orders (though not all are legally deficient). Trump’s order purporting to block enforcement of the law banning TikTok is almost comically illegal. It contradicts the plain language of the statute, and presidents do not have the constitutional power to rewrite statutes by executive fiat.
But this legal analysis skips a key question: Will Trump comply with the rulings of the Supreme Court? Or will he disregard rulings he doesn’t like, demand that the executive branch bend to his will, and then pardon the men and women who might criminally defy the Supreme Court?
If you think this scenario is far-fetched — yet another example of “pearl clutching” by hysterical Never Trumpers — remember that in 2021 JD Vance said in a podcast, “I think that what Trump should do, like if I was giving him one piece of advice, fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people. And when the courts — because you will get taken to court — and then when the courts stop you, stand before the country, like Andrew Jackson did, and say: ‘The chief justice has made his ruling, now let him enforce it.’”
Jackson’s statement is probably apocryphal. His own response to the Supreme Court was far more complex than the quote implies, but Vance’s intent is obvious. He was signaling that Trump could defy the nation’s highest court.
Vance stood by that idea in 2024, and now — in 2025 — Trump has fundamentally rebuked the American justice system by ordering the pardon and release of more than 1,500 people lawfully charged for their role in arguably the most dangerous insurrectionary act since the Civil War.
I continue to hope that Trump will begin to behave as he did before he attempted to steal the 2020 election. As The Times’s Adam Liptak reported in 2023, “the Trump administration had the worst Supreme Court record of any since at least the Roosevelt administration.” Yet Trump did not defy the court. Time and again, he lost and then complied with the rulings.
But 2020 was different. He lost every important court case challenging the outcome of the election, yet rather than yield to the rule of law (as Al Gore did when he faced a bitter Supreme Court defeat in 2000), he lied to the American public, tried to illegally cling to power and instigated a mob.
Trump’s pardons tell us that we’re far more likely to experience the President Trump of 2020 (and especially 2021) than the President Trump of 2017 to 2019. As National Review’s Noah Rothman argues, Trump is already planting the seeds of more political violence.
“Republicans who support these pardons,” Rothman writes, “will sacrifice the moral authority they would have needed if they were to convincingly argue for the preservation of domestic tranquillity.”
Rothman is right. Trump’s friends can commit acts of violence on his behalf. Trump’s enemies have to face danger on their own. And that reality hovers over every presidential decision Trump makes.
Some other things I did
My Sunday column was about a threat to religious liberty from the State of Texas. The attorney general, Ken Paxton, is attempting to shut down Annunciation House, a religious nonprofit founded by local Catholics that provides food, clothing and shelter to migrants in El Paso. Paxton has asked the Texas Supreme Court to reject the idea that serving vulnerable migrants is free exercise of the Christian faith. No, really:
Paxton argues that closing Annunciation House won’t substantially burden its free exercise of religion. Why? Because according to Paxton, Annunciation House, which mainly serves the poor, doesn’t engage in many religious rituals. Here’s a quote from Paxton’s brief:
“Annunciation House’s house director testified that Annunciation House (i) goes periods of ‘nine months, 10 months’ without offering Catholic Mass, (ii) does not offer confessions, baptisms or communion and (iii) makes ‘n’” efforts to evangelize or convert its guests to any religion.”
In other words, Annunciation House isn’t Catholic enough to earn Pope Paxton’s seal of approval.
On Tuesday I spoke with my colleagues Patrick Healy and Michelle Goldberg about Trump’s first day in office. I focused on one of Trump’s secret weapons — exploiting civic ignorance:
And one thing, Michelle, that I think is a little different for Trump from other presidents is the extent to which he has weaponized and exploited civic ignorance.
One of the things that I think we’re learning is how much the American experiment has depended on the honor system. That presidents of both parties, with varying degrees of truthfulness and honor, by and large, maintained American norms and did not explicitly weaponize American ignorance in the way that Trump has.
I think what Trump and the people around him have realized is that he can do wild things, like some of the executive orders that will thrill MAGA and, of course, enrage his opposition. But then outside MAGA, there won’t be a ripple that any of this occurred at all.
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