Donald Trump’s executive order targeting birthright citizenship was never likely to survive constitutional scrutiny. But that was never the point. What it reveals instead is a deeper and far more dangerous ambition: to weaken the judiciary’s ability to block presidential overreach — and to create a legal framework where the Constitution becomes optional.
The order, already struck down by multiple courts and widely condemned as unconstitutional, is just the surface story. Beneath it is a procedural tactic aimed at dismantling the system designed to keep executive power in check.
The Order That Dared the Courts to Stop It
Shortly after returning to office in 2025, Trump signed Executive Order 152, declaring that children born to undocumented immigrants would no longer be granted U.S. citizenship. It was a direct challenge to the Fourteenth Amendment, which guarantees birthright citizenship to anyone born on U.S. soil.
Legal experts quickly responded: the executive branch cannot override constitutional rights. District courts blocked the order. Judge John Coffanower and others issued universal injunctions, and federal appeals courts upheld them, making clear that only a constitutional amendment — not an executive action — could revoke this right.
But the administration’s real goal wasn’t to win on constitutional grounds. It was to undermine how the courts block unconstitutional orders in the first place.
Dodging the Merits, Targeting the Process
Instead of defending the order’s legality, Trump’s legal team aimed at the courts’ power to stop it. They asked the Supreme Court not to rule on whether the executive order was constitutional — but to restrict the ability of lower courts to issue nationwide injunctions.
It was a telling pivot. During oral arguments, Justice Elena Kagan questioned why the administration avoided defending the actual policy. Justice Ketanji Brown Jackson warned that if lower courts lose the ability to block illegal federal actions across the country, each affected person would be forced to file their own lawsuit — a logistical and legal nightmare. Justice Sonia Sotomayor likened it to requiring every gun owner to individually sue if the government tried to confiscate firearms without cause.
The administration wasn’t trying to win the legal fight. It was trying to change the rules of the game.
Undermining Judicial Enforcement
Executive orders aren’t self-executing. They need administrative systems — databases, forms, agencies — to function. When pressed, Trump’s attorneys admitted they had no enforcement plan. They suggested that agencies might find a way to identify newborns based on parental immigration status, but offered no practical framework.
This wasn’t a failure of planning. It was deliberate. An order doesn’t need enforcement to be politically effective — it just needs to generate fear and provoke a court fight the administration can then manipulate procedurally.
Justice Amy Coney Barrett pressed the Solicitor General about whether the government even intended to comply with rulings from regional circuits. The administration’s unwillingness to commit said the quiet part out loud: they weren’t just challenging the courts — they were beginning to ignore them.
The Stakes: Constitutional Paralysis
This fight centers on a legal mechanism most Americans have never heard of: the universal injunction. When courts block executive actions nationwide, it’s often through this tool. It stopped the family separation policy, paused travel bans, and protected Dreamers under DACA.
If the Supreme Court sides with Trump’s argument, that tool could disappear. Courts would still be able to rule, but only within narrow jurisdictions — or for specific plaintiffs. That means an unconstitutional policy could remain in place for years, harming millions, while litigation crawls through dozens of separate courtrooms.
The result? A presidency unconstrained by judicial oversight.
From Legal Theater to Structural Change
The Constitution doesn’t enforce itself. Courts do. And Trump’s strategy — executed through Executive Order 152 — is designed to neutralize that enforcement.
Step one: issue a blatantly unconstitutional order.
Step two: provoke a lawsuit.
Step three: shift the legal debate away from the Constitution and onto judicial process.
Step four: get the courts to weaken their own power in the name of “restraint.”
This isn’t just authoritarian. It’s architectural. It’s the slow demolition of checks and balances by those who know exactly where to strike.
Trump’s order was blocked. But the legal theory behind it — the idea that a president can act beyond the reach of the judiciary — remains alive.
And if it’s not stopped now, the next executive order won’t just test the Constitution. It might bypass it entirely.
Sources:
- https://www.whitehouse.gov/briefing-room/presidential-actions/
- https://www.law.cornell.edu/constitution/amendmentxiv
- https://www.aclu.org/news/immigrants-rights/trumps-attempt-to-end-birthright-citizenship-is-unconstitutional
- https://www.scotusblog.com/2025/05/justices-weigh-universal-injunction-power-in-birthright-case/
- https://kff.org/policy-watch/birthright-citizenship-court-challenges