Day 2: The Executive Orders

Executive Orders are Donald Trump's ideal mode of governance. He can point to some person (or, perhaps, some computer—keep reading), have something written up, sign it, and declare victory. It takes virtually no time or energy on his part, and doesn't involve dealing with the pesky members of Congress. What's not to like?

This being the case, most of the big political news yesterday involved XOs, in one way or another. Here's a rundown:

1. AI: Yesterday Trump, joined by SoftBank CEO Masayoshi Son, OpenAI CEO Sam Altman and Oracle Chairman Larry Ellison, hosted a big "unveiling" of a plan, by those companies and others, to invest $500 billion in infrastructure for artificial intelligence. Trump said that this will create 100,000 jobs.
   
   With things like this, particularly when they are announced 48 hours into a presidential term, it's fair to wonder exactly how much the president had to do with the news. Certainly the three executives were effusive in giving Trump credit. Son, for example, declared: "We wouldn't have decided to do this unless you won." Maybe he's speaking truth. On the other hand, the first computer center (of 20 that will be built) commenced construction early last year. Oh, and there have already been numerous announcements of big-time investments in AI from these three firms. So, it sure looks like three Trump supporters, fellows who would also very much like to curry favor with his administration, just might be giving him an overgenerous amount of credit.
   
   What does this have to do with executive orders? Well, there are two connections. One of the many Joe Biden XOs that Trump struck down was one that required developers of AI systems that pose risks to U.S. national security, the economy, public health or safety to conduct safety tests and share the results with the U.S. government. Biden issued this order, which is sort of a preemptive-TikTok thing, under authority granted by the Defense Production Act. Trump, obviously, wants firms who are working on AI to be able to do anything they want, and now they can. Expect Skynet to come online in August 2027 or so.
   
   When it comes to AI, the Trump administration apparently does practice what it preaches, however. And that brings us to the second connection. With an additional 24 hours to examine the flurry of Trump XOs, the evidence is pretty clear that... substantial portions of them were written by AI. The problem here is that things like commas, indents, dashes, word choices, etc. matter an awful lot when it comes to figuring out what instructions are being given to the federal agencies. With these sorts of details, however, AI isn't great. So, it could be an adventure as federal employees try to parse the XOs. Maybe they can ask AI for help.
   
   
2. Israel: One of the things that escaped nearly everyone's attention on Day 1, including ours, is that Trump got rid of Biden's executive order 14115, which was issued in February 2024, and was entitled "Imposing Certain Sanctions on Persons Undermining Peace, Security, and Stability in the West Bank." What the Biden XO did was impose sanctions on Israel in response to violence committed by Israeli settlers against civilians in the West Bank. Israeli PM Benjamin Netanyahu very much wanted that XO struck down, and now it has been. This may not make much of a difference, since other nations followed suit after Biden acted, and those other nations' sanctions are still in place. Still, it's another reminder that it is not now, and never was, credible that Trump is more a friend to the Palestinian people than Biden was.
   
   
3. Insecurity: One of the new XOs that Trump issued yesterday ends Secret Service protection for a number of former national security officials, most obviously John Bolton. Here is Trump's explanation, in response to a question from a reporter:

   I think there was enough time. We take a job, you take a job, you want to do a job, we're not going to have security on people for the rest of their lives. Why should we?

   We assume: (1) that is English, and (2) that Trump is trying to say something like "we can't protect people forever." But we can't swear to it, on either count.
   
   The reason that Bolton and the others were being protected is that their lives have been credibly threatened by the nation of Iran. There is no reason to believe that Iran has moved on, and is no longer interested in avenging themselves upon Bolton and the other no-longer-protectees. However, Bolton, and several of the others, have been critical of Trump. And that is determinative here.
   
   
4. DEI: On Monday, Trump brought an end to all federal DEI programs. On Tuesday, he issued an XO instructing that any federal employee responsible for overseeing DEI efforts be placed on paid leave. Obviously, the administration is trying to determine the best way to terminate these folks' employment. Undoubtedly, this is not happy news for individuals who are about to lose their jobs. That said, since roughly November 5 of last year, they have surely been making sure to get their résumés up-to-date.
   
   
5. Tariffs: The Day 1 tariffs that Trump promised (threatened?) did not happen on Day 1. They also did not happen on Day 2. However, the President did say yesterday that he's planning to slap a 25% tariff on goods imported from Canada and Mexico. In a little over a week, we'll see if he means it, or if this is just bluster/a negotiating tactic. That said, probably best to stock up on maple syrup and ponchos right now, just in case.

Will today bring even more XOs? Perhaps so, though we'll pretty soon reach the point that everything that can be done via XO will have been done. Then it will be time to actually govern. Or play golf, one of those two. (Z)

Day 2: The Lawsuits Are Flying

It's kind of the script these days, isn't it? When control of the White House passes from one political party to the other, the president from the party that is now in power immediately fires off a bunch of executive orders as soon as he takes office. Meanwhile, AGs from states controlled by the other party immediately file a bunch of lawsuits. Of course, with Donald Trump—who loves both XOs AND pushing the limits of his powers—this tendency is magnified.

And so it is that, less than 24 hours into Trump presidency v2.0., there are now three lawsuits challenging his executive order on birthright citizenship. The lawsuits are the work of 22 state AGs, as well as lawyers working for the cities of Washington, D.C., and San Francisco, and lawyers working for the ACLU. Eighteen of the AGs and the two cities filed in Massachusetts, the ACLU filed in New Hampshire, and the other 4 AGs filed in Washington state. That's the First and Ninth circuits, which are generally regarded as two of the most liberal federal court circuits. Texas AG Ken Paxton isn't the only one who knows about venue shopping.

When we wrote about this subject yesterday, we had to be a little brief, due to time and length constraints. Today, a bit more nuance. As many readers will know, throughout the eighteenth and nineteenth centuries, Americans operated under the assumption that citizenship conveyed to (nearly) everyone born in the United States. In 1868, the Fourteenth Amendment made that considerably more concrete, establishing that "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." This was specifically meant to correct for the Dred Scott decision of 1857, which said that Black people, even if born in the United States, were NOT citizens.

Following the general understanding of the antebellum era, and the text of the Fourteenth Amendment, the third and final piece of the birthright citizenship puzzle is the 1898 case United States v. Wong Kim Ark. Wong was born in San Francisco, and left the United States on a couple of occasions after the passage of the Chinese Exclusion Act of 1882. On one of those occasions, he was denied re-entry, and sued on the basis that he was a citizen by virtue of having been born in San Francisco. The Supreme Court found in his favor, by a margin of 6-2 (the ninth justice, Joseph McKenna, could not be present for oral arguments, and so did not participate in the decision).

The crux of the case, which is very likely to be very relevant in the immediate future, was five words in the Citizenship Clause of the Fourteenth Amendment: "subject to the jurisdiction thereof." It is clear that the intent of this was to exclude the children of diplomats and other representatives of foreign governments. However, the two dissenting judges embraced a much broader reading of the phrase, deciding that it limited the grant of citizenship only to children who were/are SOLELY subject to the jurisdiction of the U.S. government. In other words, if a child is born in the U.S., but receives citizenship from some other country upon their birth (say, both parents are British), then—goes the argument—they are born subject to the jurisdiction of that other country (in this case, the U.K.), and so are not born subject to the jurisdiction of the U.S. government. Ipso facto, U.S. citizenship does not convey.

The point here is that birthright citizenship, as currently understood, depends on a 127-year-old Supreme Court interpretation of a 157-year-old passage in the Constitution. That interpretation is well supported by evidence (including the spoken and written words of those who wrote the Fourteenth Amendment), and stare decisis should mean that the interpretation that has prevailed for more than a century should be controlling, barring some major new development. However, the abortion issue showed very clearly what this Supreme Court thinks of stare decisis.

The point here is that the plaintiffs in the three lawsuits—which will presumably be consolidated, and which will surely end up at the Supreme Court—should prevail easily. But you can't be certain. And there are at least two dynamics worth noting. The first is the obvious one: If five of the six conservatives on the Court are opposed to birthright citizenship, then those five are likely to get to the result they want, no matter how much they have to twist themselves into legal pretzels in order to do so.

If you had to guess, you'd guess that Associate Justices Clarence Thomas, Neil Gorsuch and Samuel Alito are opposed to birthright citizenship, Associate Justice Brett Kavanaugh is a leaner, and that Chief Justice John Roberts and Associate Justice Amy Coney Barrett are OK with U.S. v. Kim Wong Ark. If so, then that would be 2 right-leaning votes against Trump's position. Add in the three liberals, and the XO goes down to defeat.

But, as we note, the letter of the law is not the only dynamic here. Donald Trump is feeling very much above the law right now, in sizable part because this very Supreme Court told him he could feel that way. He is also very committed to getting rid of birthright citizenship. If the Supreme Court says "You can't do it, Mr. Trump," he might well channel his inner Andrew Jackson, and respond with "John Roberts has his decision, now let him enforce it." That would be a huge embarrassment to SCOTUS, and would lay bare that they have ceded much of their power and their moral authority. So, it's possible that two of three (or three of three) among Kavanaugh, Barrett and Roberts will give Trump the decision he wants, just to save face.

On the other hand, if the textualists on the Court insist on following the actual words in the Constitution and rule that the XO is null and void and Trump continues to enforce the XO anyway, Trump's lawlessness could become a campaign issue for the Democrats in 2026 ("Give us the House and Senate so we can impeach and convict him"). If the Democrats then win the House, and remember they picked up 41 seats in 2018, they are likely to impeach him for disobeying the Supreme Court.

The upshot is that it is clear how this story SHOULD end. But how it actually WILL end is a big question mark. (Z)

Day 2: More Trouble for Hegseth

The senators who will soon be asked to consider Pete Hegseth's nomination to lead the Pentagon got something new to chew on yesterday. At the request of Sen. Jack Reed (D-RI), who is the ranking member of the Senate Armed Services Committee, Hegseth's former sister-in-law, Danielle Hegseth, submitted an affidavit detailing a long history of abusive behavior that she says she observed. This abusive behavior was largely directed toward the SOD-designate's second wife, Samantha Hegseth.

The claims made in the affidavit are, to say the least, hair-raising. Danielle says that Samantha was a regular target of verbal abuse and of threats, and that she often feared for her safety. Those fears were substantive enough that Samantha allegedly hid in a closet to escape her then-husband on at least one occasion, and also developed detailed escape plans in case they should be necessary. These escape plans were, according to Danielle, put into effect on at least one occasion.

Pete Hegseth denies everything, of course, and said yesterday that his former sister-in-law made it all up. Samantha, his ex-wife, has declined to confirm or deny the claims made by her former sister-in-law. She sent an e-mail to NBC News, which first reported the story, that read, in part: "I do not have representatives speaking on my behalf, nor have I ever asked anyone to share or speak about the details of my marriage on my behalf, whether it be a reporter, a committee member, a transition team member, etc."

The fundamental problem faced by the Republican senators is very simple. They already know that Hegseth is not qualified to run the Pentagon, but that insight is not enough to cause them to withhold their votes, because the political blowback that would come from opposing Donald Trump (particularly if no other senator does so) would be too much. However, if Hegseth gets enmeshed in some scandal while serving, or if some other skeleton comes out of the closet, it could be ugly. For example, what if, in a couple of months, he is credibly accused of rape? The political blowback for senators who voted to approve Hegseth could be enormous. Donald Trump might be covered in seven layers of teflon, but the senators are not.

So the question is: How great is the risk of getting burned? Our guess is that the senators convince themselves that the risk is acceptable, and vote to confirm. But it's a very hard call, given how very many skeletons this fellow seems to have in his closet.

Another problem is that something could happen on the military front that requires the secretary to take charge. Suppose China attacks Taiwan. Suppose Iran successfully tests a nuclear weapon. There are plenty of known unknowns as well as unknown unknowns. Then Trump gives Hegseth an order and he completely botches it. During the fighting, the generals ask Hegseth what he wants them to do and he doesn't have a clue and it goes south—badly. Trump will then blame Hegseth, but imagine the 2026 campaigns against senators who voted to confirm him despite knowing that he was totally incompetent and did it anyway. (Z)

Day 2: Another Big Pardon

On Monday, Donald Trump pardoned the vast majority of the 1/6 insurrectionists. Apparently, he did not put his pardon pen away, because on Tuesday he announced another high-profile exercise of the pardon power. The beneficiary of the latest Trump beneficence is Silk Road founder Ross Ulbricht. Until yesterday, Ulbricht had been serving a life term in federal prison, by virtue of having founded and operated a "dark web" network that facilitated $200 million in illicit trade—primarily illegal drugs, but also prostitution, child pornography, and other such things.

The official reason for the pardon is that Trump promised it to supporters, many times, while he was campaigning. Ulbricht is something of a folk hero to Libertarians, given his creation of a network that allows people to subvert both the law and the economic system (transactions were conducted via bitcoin). He's like Robin Hood, except with cryptocurrency and, you know, kiddie porn. Delivering on this promise was easy enough for the President, since he doesn't really care how many lawbreakers are out there (as long as they are not brown-skinned).

While the official story behind the pardon undoubtedly goes far in explaining what happened, it doesn't explain all of it. Trump feels a kinship with Ulbricht, and went so far as to declare that "The scum that worked to convict him were some of the same lunatics who were involved in the modern day weaponization of government against me." Even more importantly, Trump wants to send the message that there's a new crypto sheriff in town, and that on that front, just about anything goes. Exactly why Trump might want to use his powers to do anything possible to stimulate the crypto economy, we will leave readers to figure out for themselves. (Z)

Day 2: Miscellany

There were a few more stories from the first 48 hours of the new Trump administration that may be of interest, but probably don't warrant a whole item. So, we're going to lump them together.

To start, the ratings are in for the President's inaugural, and... he's not going to be happy. They were down 27% from Joe Biden's inauguration in 2021, and 20% from Trump's first inauguration in 2016. And Trump fell WAY short of Barack Obama's first inauguration (though he beat the second one). Here's the total viewership for the last five presidential inaugurations:

President	Total Viewers
Obama I	38 million
Obama II	21 million
Trump I	31 million
Biden	34 million
Trump II	25 million

Trump's total on Monday is even less lustrous when you consider that: (1) the population of the country is roughly 10% larger today than it was in the Obama years and (2) this year's inauguration took place on a holiday, when plenty of people were home to watch. And there's no Sean Spicer around, this time, to tell us that the viewing audience for Trump II was the biggest in American history.

Moving along, there is still some debate going on about Elon Musk's hand gesture, and whether it was an actual Nazi salute, or it was merely a boisterous gesture that just so happened to look exactly LIKE a Nazi salute. Yesterday, some folks with a fair bit of insight on this subject weighed in. All over social media, particularly eX-Twitter and its further-right cousins like Gab, Neo-Nazis expressed delight about the salute. "WE ARE FU**ING BACK," said one of them, just to give one example. Of course, what would Neo-Nazis know about Nazi salutes?

And finally, someone discovered that if you go to the new White House website, and you navigate to the page for the Constitution, this is what you get:

Redesigning a website is tricky, and it's easy to have a few oversights. But if there was ever such a thing as a Freudian oversight, this would be it. (Z)

Adams Ready to Make His Move?

In this past Sunday's mailbag, reader R.M. in New York City wrote in with this:

My money is on Eric Adams switching back to being a Republican. There is no strong Republican challenger in the wings (or even one with any name recognition), so it would give Adams his best chance of advancing to the general election. Adams can continue his Trump charm offensive to peel off actual Republicans, and hope to cobble together some sort of coalition with whatever remains of his 2021 base. His best hope would be for the candidate who makes it through the Democratic primary to be someone who can be painted as an open borders, defund the police leftist. Coupled with whatever is happening on the national scene around crime and immigration, not to mention coming out hard against the recently enacted congestion pricing, he could still have a chance to squeak out a victory in a super close race.

Events in the last 48 hours have made it appear as if R.M. was prescient.

To start, Adams sat for an interview yesterday with Tucker Carlson. Anytime a Democrat has a confab with one of these Fox types, it makes a statement. But Tucker Carlson? Unfettered from whatever meager restraints that were placed on him by Fox, he's basically a white supremacist these days. And as he rattled off far-right talking point after far-right talking point, Adams largely just nodded. That makes a REAL statement.

This is not to say that the New York Mayor remained entirely silent, however. Most obviously, he spent some time railing against the current iteration of the Democratic Party, telling Carlson: "People often say, 'You don't sound like a Democrat. You seem to have left the party. No, the party left me, and it left working-class people." Pretty much that exact verbiage is commonly prelude to a party switch, because it frames the person (in this case Adams) as a person who is steadfast in their values, as opposed to a craven opportunist looking for the greener grass on the other side.

Adams also added something else, echoing things he's said several other times in the past month or so: He's very eager to work with the Trump administration. Adams also attended the inauguration, and has publicly pledged not to criticize Trump. One could very reasonably point out that all of these things are useful steps that the Mayor might take for the benefit of his city. However, they are also useful steps that he might take if he's planning a party switch. Oh, and they are also useful steps that he might take if he's in search of a presidential pardon, something that seems to be pretty freely available these days.

We are very skeptical that the badly damaged Adams can cobble together a winning coalition, even if he does switch parties (and certainly, The New York Times is not impressed). However, it sure does look like the Mayor is preparing to give it the old college try. (Z)

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