WHAT’S REALLY GOING ON HERE?
“NOW HEAR THIS: ALL JOB OFFERS NOW SUBJECT TO NEW RULES: HIRES OTHER THAN STRAIGHT WHITE MALES COULD BE UNLAWFUL ‘DEI’ ACTIVITY.” SIGNED, DONALD J. TRUMP. “I’M ALSO RE-WRITING THE 14TH AMENDMENT."
For a would-be “Deregulator in Chief,” President Trump is sure doing a lot of regulating: 350 Executive Orders in one week: two every hour. And the new tariff rules are still to come. Ten rules will go for everyone added, he said -- but it’s the other way around, and then some. His only attempted deregulation so far is cancelling Section 1 of the Fourteenth Amendment!
It also has not taken long after the Presidential Inauguration for the first taste of white supremacy to become official Trump government policy. In a bow to the “Great White Replacement theory” advanced by Tucker Carlson and other similar right-wing commentators, President Trump quickly issued an Executive Order purporting to revoke the Fourteenth Amendment’s promise of citizenship for children born in the United States to unauthorized immigrants or temporary visitors. Although at least one federal court quickly enjoined this action as “blatantly unconstitutional,” the issue will find its way to the Supreme Court soon enough. (More on the odds for another pro-Trump surprise Court ruling on that score below.)
More immediately, President Trump – apparently acting on the belief of many MAGA adherents that there is more discrimination now against white persons (especially males) than any other race, ethnicity, or gender – terminated immediately all “Diversity, Equity and Inclusion” programs and hiring initiatives (and set up elimination of all related staff positions) in federal agencies by Executive Order. Even more significantly, however, Trump also formally threatened all non-governmental entities that maintain or appear to engage in such programs with federal investigation and intervention aimed to out such programs to end in their domains as well. https://www.bloomberg.com/news/articles/2025-01-24/dei-trump-s-executive-orders-targeting-diversity-policies-are-fueling-backlash?srnd=homepage-asia
The text of that portion of his Order reads as follows:
“Sec. 4. Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences. (a) The heads of all agencies, with the assistance of the Attorney General, shall take all appropriate action with respect to the operations of their agencies to advance in the private sector the policy of individual initiative, excellence, and hard work identified in section 2 of this order.
(b) To further inform and advise me so that my Administration may formulate appropriate and effective civil-rights policy, the Attorney General, within 120 days of this order, in consultation with the heads of relevant agencies and in coordination with the Director of OMB, shall submit a report to the Assistant to the President for Domestic Policy containing recommendations for enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI. The report shall contain a proposed strategic enforcement plan identifying:
(i) Key sectors of concern within each agency’s jurisdiction;
(ii) The most egregious and discriminatory DEI practitioners in each sector of concern;
(iii) A plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated “DEI” or otherwise) that constitute illegal discrimination or preferences. As a part of this plan, each agency shall identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars;
(iv) Other strategies to encourage the private sector to end illegal DEI discrimination and preferences and comply with all Federal civil-rights laws;
(v) Litigation that would be potentially appropriate for Federal lawsuits, intervention, or statements of interest; and
(vi) Potential regulatory action and sub-regulatory guidance.” (Emphasis supplied.)”
The new Presidential regulation appears to be based on the biased premise that the only acts of employment discrimination that long-standing federal Civil Rights laws and regulations will recognize going forward will be those that allegedly disadvantage members of the white majority, not any disadvantaged minority. This posture turns all such anti-discrimination statutes and rules inside out. https://www.aclu.org/news/racial-justice/trumps-executive-orders-rolling-back-dei-and-accessibility-efforts-explained
The notion that a minority person might represent a meritocratic selection is all too readily discarded under the Trump Executive Order. There seems to be an underlying assumption that DEI programs are equivalent to the form of affirmative action in college admission that the Supreme Court ruled unconstitutional. DEI is not an affirmative action program; it is about capturing the productive value of diversity in the workforce by assuring that minority applicants have an equitable opportunity to be included in the process to compete on their merits. It does not provide a special hiring lane or a break on their test scores.
DEI is intended to assure historically disadvantaged minorities a fair chance of success, which their forebearers were systematically denied by governmental laws and rules, as well as private exclusionary covenants and practices. So intent is the new Administration on wiping out any efforts to provide a level playing field for minorities in hiring and contracting that they have also promulgated a Stasi-like effort to compel federal employees to “snitch” on colleagues that appear to be concealing secret efforts to pursue and protect DEI agendas, asserting there will be a price to pay for failure to do so.
“DEI programs attempt to promote opportunities for women, ethnic minorities, LGBTQ+ people and other traditionally underrepresented groups. Civil rights advocates have argued such programs are necessary to address longstanding inequities and structural racism. Trump and his supporters say DEI programs end up unfairly discriminating against other Americans and weaken the importance of candidates' merit in job hiring or promotion.
“In a new message distributed on Wednesday, government employees were warned they would face "adverse consequences" if they failed to promptly report any hidden DEI programs. ‘We are aware of efforts by some in government to disguise these programs by using coded or imprecise language," said the memo, which set a 10-day deadline for information.’ It was not immediately clear what evidence the administration has of any efforts to conceal diversity programs.’”
Trump also rescinded an Executive Order of President Lyndon Johnson prohibiting government contractors from discriminating in their hiring, firing, promotion or pay practices. Now those contractors (who collectively employ about twenty-five percent of the active American workforce) must now affirm that they do not have “illegal” DEI programs or practices to support disadvantaged minority workers. This new Order is thus a total “about face” in terms of the purposes of our Civil Rights laws.
“What this suggests is that Team Trump objects not just to recent alleged ‘excesses’ in the pursuit of nondiscrimination but to the basic idea that the federal government has the obligation to fight it. That’s not entirely surprising when you look at all the polling of MAGA folk showing that they perceive discrimination against white people as a bigger problem than discrimination against non-white minority groups. And, indeed, an emerging talking point among Trump advisers that may explain the action on EO 11246 is the Orwellian claim that any effort to reduce discrimination against particular people itself violates ‘color-blind’ civil-rights laws. In this view, legal neutrality toward old-school racial discrimination in employment is the only guarantee we have that ‘merit’ is rewarded.
“If that’s the case, you wonder how long it will be before MAGA folk decide that civil-rights laws should be turned upside down to ban anti-discrimination policies altogether as inherently discriminatory. It’s bad enough that Trump and his advisers believe the official discrimination against Black people that characterized U.S. laws and politics from the founding of the Republic until the 1960s is not a problem worth addressing anymore. It’s even worse to claim that the only way to prevent discrimination is to get rid of any effort to address it. That way lies a return to white supremacy in the guise of color-blind ‘meritocracy.’ And it’s also a terrible trend for the women and LGBTQ+ folk who have benefited from the same laws and policies as they were extended into the 21st century.”
Women, especially women of ethnic or racial minorities, will be particularly burdened by the Trump Order’s “Alice in Wonderland meets 1984” interpretation of existing anti-discrimination statutes and standards. Even with blanket immunity for his official acts, however, President Trump cannot legally repeal the Fourteenth Amendment and all Civil Rights Acts on his own authority. He can and now does attempt, however, to neuter their enforcement and legal force by adopting the absurd premise that they were intended to protect and benefit only a white majority of Americans. A raft of industry-leading American businesses have rushed to comply by rather ceremoniously abandoning their DEI policies, programs and people: both Walmart and Target; Facebook and Amazon; Ford and Harley-Davidson; Deere and Tractor Supply Company; Molson Coors and Brown Forman (a/k/a Jack Daniels). Thus far, Microsoft, Costco (and its shareholders) and J.P. Morgan have stood firm, but they are under pressure from the Administration. https://www.forbes.com/sites/conormurray/2025/01/24/dei-under-fire-target-rolls-back-diversity-initiative-as-costco-keeps-it-heres-the-list-of-major-companies-dropping-it//
GOP Attorneys General in nineteen states sent a letter to Costo on January 27 urging them to immediately get on board within thirty days with the President’s policy and cease any DEI activity, lest they run afoul of the Supreme Court’s affirmative action ban in public and private universities – adopting the myth that DEI is the equivalent of affirmative action with different vocabulary. The move comes after Texas Attorney General Ken Paxton called on Wall Street firms to answer for their DEI measures. https://www.bloomberg.com/news/articles/2025-01-28/republican-attorneys-general-call-on-costco-to-end-dei-policies
The President is also taking a step beyond the Supreme Court’s collegiate affirmative rejection by seeking to eliminate all traces of DEI in the hiring, admissions, teaching and research practices of institutions of higher education -- particularly those “elite” schools with significant endowments that could find their current low tax rates jump like a Trump tariff by the act of a similarly motivated GOP Congress. (See Section 4(b)(iii) of Trump’s Order, above.) https://thehill.com/homenews/education/5103461-trump-anti-dei-colleges-universities-endowments/
Trump as promised is offering white America an Executive form of “retribution” for the alleged pervasive discrimination against them in recent years. In a few years, however, a major demographic challenge may upset their majority status under prevailing U. S. birth rate racial patterns: that is, unless birthright citizenship as we have known it since 1868 is successfully redefined by Trump’s fiat as restricted to children born in the U. S. with at least one citizen or permanent resident parent. His legally novel interpretation of the Fourteenth Amendment would potentially involve hundreds of thousands of future Black, Hispanic, Indian and Chinese children born in America from attaining the rights of citizenship under the Amendment. The impact on citizenship numbers would be considerable.
“Nationally, according to the complaint from four Democratic-led states in Seattle, in 2022, ‘there were approximately 255,000 births of citizen children to non-citizen mothers without lawful status (undocumented) and approximately 153,000 births to two undocumented parents.’ “”The filing outlines the consequences for children who would lose eligibility for vital benefits and social services. Adults would be unable to obtain Social Security numbers and work lawfully. And they would not be able to vote. Overall, the claim asserts, the newly affected individuals “will be placed into lifelong positions of instability and insecurity as part of a new underclass in the United States.” https://www.cnn.com/2025/01/23/politics/supreme-court-birthright-citizenship-14th-amendment-wong-kim-ark/index.html
On his first day in office, President Trump also directed U.S. government agencies to no longer issue citizenship documentation to babies born in the United States to parents who lack permanent legal status. “Trump’s order seeks to reinterpret the 14th Amendment of the Constitution, which grants citizenship to all people born on U.S. soil, a change legal scholars say is illegal and will be quickly challenged in the courts. The birthright order was part of a burst of immigration-related directives aimed at undoing Biden administration policies and wielding obscure presidential powers to launch a broad crackdown along the border and across immigrant communities.” https://www.washingtonpost.com/immigration/2025/01/20/trump-immigration-executive-orders/
Specifically, Trump directed the federal government to cease issuing passports or Social Security numbers to newborns unless they have a parent who is either a citizen or a permanent resident of the United States. Children born in America to “illegal” migrants would be excluded from citizenship, along with those born to any of around three million persons living in America on exchange, work or student visas.
On an appearance on CBS TV on Sunday, January 26, Vice President J.D. Vance asserted without evidence or any legal citation that there is a distinction built into the Fourteenth Amendment between persons in the country “temporarily” and those with the intent – and the right – to live in the U.S. permanently that justifies Trump’s Order restricting birthright citizenship provided in the Constitution. Vance, as often, is wrong. Ratified in 1868 in the aftermath of the Civil War and the freeing of the slaves, the Fourteenth Amendment in its very first Section establishes as the highest law of the land the following statement: “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.” Trump’s Executive Order is based on the notion that the Amendment doesn’t mean what it plainly says, and that the children of noncitizens or permanent residents are somehow not subject to the “jurisdiction of the United States” (even though they can be charged with crimes and deported.) The Order would also extend to babies born to mothers in this country legally but temporarily, such as tourists, university students or temporary workers, if the father is a noncitizen. https://www.huffpost.com/entry/trump-birthright-citizenship-blocked_n_67928abae4b0c94316ecac7f; https://www.npr.org/2025/01/23/nx-s1-5270572/birthright-citizenship-trump-executive-order
“The American-born children of foreign diplomats, who have immunity from prosecution, have always been excluded from American citizenship, under the clause about jurisdiction….But Mr Trump seems to think the jurisdiction clause allows him to exclude far more people. To justify this he draws on fringe thinking, which has gained adherents on the right since the early 1990s. Republican representatives in Congress have repeatedly introduced laws ending birthright citizenship, though none has got out of committee, notes Peter Spiro of Temple University in Philadelphia. The argument made is that when the framers of the amendment wrote ‘jurisdiction’ what they in fact meant was ‘allegiance’. This ‘just looks reversed-engineered’, says Mr Spiro.
“Since 1898, when United States v Wong Kim Ark was decided by the Supreme Court, American law and practice has held that birthright citizenship applies to the children of foreigners, says Alison LaCroix of the University of Chicago’s law school. In that case, an American-born child of Chinese migrants in San Francisco sued when he was refused re-entry to America. A president cannot overturn over a century of precedent about how to interpret a constitutional amendment with an executive order, says Ms LaCroix. Had it been applied in the 1960s Mr Trump’s rule would have stopped Kamala Harris from becoming a citizen.
“Ending birthright citizenship would also create some perverse outcomes. Although work visas and the like are nominally meant to be temporary, in reality, many people have them (legally) for decades, and start families during that time. In particular, because of a federal cap on the number of green cards available to citizens of any one country, people from India and China find it almost impossible to convert to permanent residency. Their children could now be excluded from citizenship, too. Indeed, it is unclear what legal status those children would have. In effect, some legal immigrants would give birth to undocumented “immigrants”. The effect of ending birthright citizenship, combined with America’s current immigration law, would be to create a growing class of second-class residents—non-immigrants who can never become citizens. Fortunately, Mr Trump probably lacks the power to bring that about.” (Emphasis supplied.)
The legal challenges to Trump’s birthright take-away have been immediate and for the moment successful. Twenty-two states, activist groups and some expectant mothers filed multiple lawsuits asserting the Order violates the Fourteenth Amendment. “In a hearing held three days after Mr. Trump issued his Order, a federal District Court judge, John C. Coughenour, sided with Washington, Arizona, Illinois and Oregon… signing a restraining order that blocks Mr. Trump’s executive order for 14 days, renewable upon expiration. ‘This is a blatantly unconstitutional order,’ he said. ‘Frankly,’ he continued, challenging Trump administration lawyers, ‘I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order. It just boggles my mind.’” https://www.nytimes.com/2025/01/23/us/politics/judge-blocks-birthright-citizenship.html
“The judge asked the government whether undocumented immigrants’ children who committed a crime would be subject to U.S. law. Mr. Shumate responded that they would be ‘subject to the jurisdiction with respect to the laws of this country, but not with respect to the citizenship clause of the 14th Amendment.’
‘Citizenship is different,’ Mr. Shumate said. To that, Judge Coughenour’s decision was emphatic: ‘I’ve been on the bench for over four decades,’ he said. ‘This is a blatantly unconstitutional order. Where were the lawyers when this decision was being made?’”
“….“After the hearing in Seattle, Nick Brown, the attorney general in Washington State, called the executive order “un-American.” But he warned the fight against it is far from over. ‘We will be back in court,’ he said, ‘as will many other people across the country.’” Ibid.
The cases challenging President Trump’s unprecedented attempt to ban birthright citizenship will likely make their way to the United States Supreme Court and revisit decision made by the Court in 1898, United States v. Wong Kim Ark, which held that a Chinese gentleman born of Chinese parents in California was not subject to the Chinese Exclusion Act on his return from a visit to Chima due to his birthright citizenship under Section 1 of the Fourteenth Amendment due to his place of birth in the U.S. https://www.cnn.com/2025/01/23/politics/supreme-court-birthright-citizenship-14th-amendment-wong-kim-ark/index.html
For starters, let’s consider the salient paragraphs of the majority opinion of Justice Horace Gray in that case that will obviously be at the heart of the High Court’s deliberations.
“The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases – children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State – both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. . . .
“By the Civil Rights Act of 1866, ‘all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed,’ were declared to be citizens of the United States. In the light of the law as previously established, and of the history of the times, it can hardly be doubted that the words of that act, ‘not subject to any foreign power,’ were not intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright, or, for instance, for the first time in our history, to deny the right of citizenship to native-born children of foreign white parents not in the diplomatic service of their own country nor in hostile occupation of part of our territory. But any possible doubt in this regard was removed when the negative words of the Civil Rights Act, ‘not subject to any foreign power,’ gave way, in the Fourteenth Amendment of the Constitution, to the affirmative words, ‘subject to the jurisdiction of the United States.’. . .
“The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.” (Emphasis supplied.)
The Trump Administration’s legal team will likely argue that unauthorized immigrants are “alien enemies in hostile occupation” of U. S. territory and therefore fall under the language of the majority opinion in the Wong Kim Ark case. But it would be hard to square that assertion with what the Court in that case had in mind, like the British Canadian bloodless incursion in Maine in 1838-39. https://nymag.com/intelligencer/article/supreme-court-vs-trump-birthright-citizenship-executive-order.html Threatening and lawless behavior in an apartment building in Colorado temporarily occupied by some members of a Venezuelan street gang just doesn’t measure up to the War of 1812 as a trigger for overruling a century and a half of settled law.
Trump’s team will also likely emphasize that the 1898 Supreme Court decision affirming the “born-in-the USA” citizenship of an ethnic Chinese male (who was otherwise subject to the Chinese Exclusion Act) is materially distinguishable from the current case because it applied only to a son of Chinese-citizen parents who were legally domiciled in the United States at the time of his birth. Therefore, they will argue (as a first-year law student might say) that the Wong Kim Ark holding is not “on all fours” with the case of children born here of “illegal” immigrant parents and therefore is of no precedential value in terms of undermining Trump’s Executive Order.
“Former Chapman Law professor John Eastman, one of the most prominent critics of birthright citizenship and a strategist behind Trump’s failed challenge to the 2020 election results, argued the 14th Amendment covered individuals subject to ‘complete’ political jurisdiction with no allegiance elsewhere. ‘Justice Gray simply failed to appreciate … that there is a difference between territorial jurisdiction and the more complete, allegiance-obliging jurisdiction that the Fourteenth Amendment codified,’ Eastman wrote in the University of Richmond Law Review, contending the 1898 court wrongly construed the ‘jurisdiction’ restriction to cover a discrete category such as the children of diplomats.” https://www.cnn.com/2025/01/23/politics/supreme-court-birthright-citizenship-14th-amendment-wong-kim-ark/index.html
Others firmly disagree:
“On one hand, they’re saying, ‘We can deport them and we’re going to do that.’ And then on the other hand, ‘Well, we don’t have any control over them and that’s why they’re not entitled to birthright citizenship.’ It just doesn’t hang together. The strongest argument that you can make for this position is simply that when the 14th Amendment was ratified, the United States didn’t really have any immigration laws. There really wasn’t any such thing as people who were here illegally. Then what you’re left with is there were these couple of exceptions that they had, and those exceptions were all things that had to do with, are you subject to the law or not? And since people who are here illegally are subject to the law and subject to deportation, those exceptions don’t cover this situation. And of course, you could say the consistent practice for the last 100-plus years has been to say that those children are citizens. https://nymag.com/intelligencer/article/supreme-court-vs-trump-birthright-citizenship-executive-order.html
CNN’s Chief Supreme Court analyst Joan Biskupic has provided consistently thorough and incisive analysis of the potential outcomes of the Court’s consideration of major social issues. Regarding the precedential value of the Wong Kim Ark case, for example, she pointed out that although the majority noted that his parents had a permanent domicile and residence in San Francisco, the Court nevertheless “did not condition its interpretation of the 14th Amendment on that fact.” She has also addressed how the President’s characterization of millions of unauthorized migrants as an “invasion” could be linked to reframing the Fourteenth Amendment by reference to the Wong Kim Ark majority’s understanding that children born of foreign forces holding parts of U. S. Territory are not citizens under the Amendment. https://www.cnn.com/2025/01/23/politics/supreme-court-birthright-citizenship-14th-amendment-wong-kim-ark/index.html
“No current cases would support Trump’s position on birthright citizenship. Yet traces of his rhetoric about immigrants ‘invading’ America surfaced last year in an opinion by US Appeals Court Judge James Ho that could, perhaps, eventually be used to advance the president’s stance. In a concurring opinion in a dispute unrelated to birthright citizenship, Ho, a 2018 Trump appointee on the federal appellate court covering Texas, Louisiana and Mississippi, was receptive to arguments that illegal immigration at the Texas border could constitute an “invasion.” That language could evoke an exception to the established 14th Amendment interpretation, for children of invading armies.
“Judge Ho has often reinforced emerging conservative theories. Before joining the bench, however, he wrote an essay directly addressing birthright citizenship and said the 14th Amendment and Wong Kim Ark case protected children of undocumented immigrants. ‘All three branches of our government – Congress, the courts, and the Executive Branch – agree that the Citizenship Clause applies to the children of aliens and citizens alike,’ he said in a 2006 essay in The Green Bag..
“Ho concluded with a warning if a move were made to withdraw birthright citizenship: ‘Stay tuned: Dred Scott II could be coming soon to a federal court near you.’” Ibid.
Biskupic also noted that the current Chief Justice John Roberts has specifically addressed the danger of another historic Court misstep like the Dred Scott decision in terms of his own legacy. “’You wonder if you’re going to be John Marshall or you’re going to be Roger Taney,’ he said in 2010, contrasting the great 19th century chief justice with the chief justice who wrote Dred Scott. ‘The answer is, of course, you are certainly not going to be John Marshall,’ Roberts said. ‘But you want to avoid the danger of being Roger Taney.’” Ibid.
Pending a further lower court decision, let’s give the last word about birthright citizenship for now to a conservative legal commentator Dan McLaughlin in the National Review, writing the day after Trump’s Executive Order was issued.
“I’ll doubtless revisit the legal arguments at greater length in the weeks to come, but the last time this issue was in the news in 2018, I explained at some length why Michael Anton (relying on the work of Eastman and Erler) was wrong and James Ho (now a Fifth Circuit judge) was right: In the original understanding of the citizenship clause, birthright citizenship is broad and the ‘subject to the jurisdiction’ exception has a very narrow and specific meaning.
“Subject to the jurisdiction” excluded only those who were excluded from the reach of American law — like the children of foreign diplomats and the children of sovereign Indian tribes — and does not exclude foreigners and aliens generally. . . . assumed that anyone found in the land should be subject to the authority of the sovereign, regardless of how they got there. That rule applied unless there was some good reason — diplomatic immunity, being a lawful foreign combatant, being a member of a separately sovereign internal group like Native American tribes — to be outside the ordinary reach of the law. Thus, Madison wrote: ‘It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.’” [Emphasis in original.]
https://www.nationalreview.com/corner/birthright-citizenship-is-still-in-the-constitution/