Episode 55: Emergency Episode: Mark Joseph Stern on Executive Action

Hello, I'm Adrienne Dobb.

And I'm Moira Donnegan.

Whether we like it or not, we're in bed with the right.

So, Adrienne, we are coming to our listeners today, nine days into the second Trump administration.

We're recording on Wednesday, the 29th, which is important because by the time this comes out, what we're saying here will probably already be out of date.

There have been a whole flurry of executive orders coming out of the new Trump administration, many of them touching on our beat, you know, gender, identity, inclusivity, the way these things are constructed by and limited by citizenship, right?

So we thought we wanted to have somebody on the show who could sort of hold our hands and walk us through this

new emerging legal landscape.

And I'm so glad that we got a hold of Mark Joseph Stern, the intrepid legal reporter at Slate, one of the smartest and most principled and insightful legal writers working for my money and also a really sweet guy.

So Mark, thank you so much for being with us here today.

Thank you so much for having me on and for those kind words.

I am truly delighted to be here, even though we'll be talking about so many awful things.

Yeah, I do wish it was under better circumstances.

Yeah, and I guess so many is already giving us the first keyword.

We're going to have to narrow things down.

This is basically the first few weeks of any Trump term at this point are essentially a decorative gourd season for the very niche slice of person currently comprising like 100% of this podcast, which is queer people who like

constitutional rights.

It's just, there's like, there's a lot to pick from.

There's basically a new outrage sort of down the pike every 20 minutes.

And

we've planned to talk about a thing that has already been rescinded like an hour ago.

So

one thing that I think we should probably do at the beginning is to kind of just delimit what really we're going to be talking about and what we're going to focus on as you walk us through it, Mark.

I agree with Moira that I've been.

I've been dying to talk to you about these because

with some of them, I really can't make heads or tails of them.

But there's just too many of them, and that appears to be part of the design, isn't it?

Oh, I certainly think so.

I mean, Steve Bannon, one of Trump's advisors, has said the plan is to flood the zone.

That is precisely what he's doing.

This is really unprecedented.

I mean, typically presidents sign a handful of executive orders on day one.

Trump just started and never stopped.

And a lot of these orders are poorly drafted.

They are sloppy.

They look like they were written with the help of ChatGPT.

There are weird grammatical errors and repetitions and formatting errors.

And the one renaming the Gulf of Mexico to the Gulf of America truly sounds like it was written by AI, doing its best to sound like maybe a seventh grader's book report.

And so they're not all created equal.

Some of them are more serious than others.

Some of them are more sweeping than others.

Some of them sound really bad.

And then I read them and I say, I'm not even sure what this does.

Some of them don't sound so bad.

And then I read them and I'm like, this is horrifying.

And so it's a real real mixed bag.

And I do kind of wonder if Trump is forever changing how new administrations begin with this, because, you know, the next president, if he or she is a Democrat, is going to have to repeal all of these on day one.

And I do think we're, we're entering maybe an escalation cycle where the first 24 to 48 hours of every presidency is just consumed by repealing and replacing a massive number of executive orders.

You know, like you, Mark, I've been like reading these and reading about them and trying to parse out exactly what they do, right?

And it seems like a lot of these are

really ambitious, expansive orders that seek to sort of, you know, sometimes

really change or expand the powers of the presidency itself.

But then some of them are

a little weird and the extent of their reach is kind of unclear to me.

And one of these was Trump's DEI order.

Could you tell us a little bit about this?

Because it's opaque to me how much this

expands,

like what it would do for federal programs and then also what it would do for the private sector.

Yeah.

So before I get into the details, I just want to sort of remind everyone, when we talk about executive orders, we are just talking about something that the president tells the executive branch to do.

The executive branch is not the only branch of government.

As of this moment, the other two still exist.

So an executive order cannot change existing law that Congress has enacted, although it can certainly try.

An executive order cannot overturn a constitutional amendment.

All that Trump can do with these is tell other agencies or the armed forces, here is how you have to operate.

And they're all susceptible to legal challenge.

As we've seen, some of them have already, in fact, been blocked.

So the DEI initiatives or repeals, I should say, that Trump has enacted are first and foremost aimed at ridding DEI of

throughout the entire government, forcing every single agency as well as the military to abolish DEI programs, to abolish DEI councils,

to abolish

any kind of position or contract or program that mentions or reflects upon diversity, equity, or inclusion.

And I'll just add, troublingly, he has inserted an A into this, DEIA.

The A stands for accessibility.

Well, accessibility is required under the Americans with Disability Acts and follow-up legislation.

So that's one area where Trump might try to legalize discrimination against disabled people through these orders, but he really can't.

Now, whether there will be a pushback is another story.

So, the main goal here is to just purge all DEIA from the federal government.

And I think he succeeded.

I mean, again, this is an area where the president has very wide latitude.

And I think that he has scared most agencies into submission.

We've seen a lot of agencies already fire people, lay people off, put them on leave who had work in the DEIA area.

And notoriously, his administration also sent around an email telling every federal employee: you have to report colleagues who are covertly engaged in DEI work, DEIA work.

And if you don't, there will be discipline and penalties for you.

So they've set up a snitch line requiring reporting of this kind of work.

Now, I'd say that's the main thrust of the orders so far.

You know, again, less than two weeks in, a lot could change.

There have not been as many orders aimed at the private sector here.

But what I think Trump is doing is laying the groundwork for a lot of investigations into the private sector if it continues to use DEIA.

So these orders are filled with language claiming that DEIA is itself discriminatory, that it is a mandate

that the race be considered, that sex be considered, that people of color be given special privileges,

and that it is therefore a violation of various civil rights laws.

And he has begun to order both the Justice Department and civil rights offices within different agencies to look into and investigate alleged violations of civil rights law that take the form of DEIA.

So I think private employers are worried right now.

They have not been directly targeted, but I think they are very much up next.

And a lot of their offices of compliance that have been doing DEIA for a while, in part to try to shield themselves from liability, to argue, hey, we're inclusive, we are following civil rights laws, they are now doing a 180 and trying to erase the existence of these programs in the first place.

So like, let me get this straight, because my

understanding, right, was that a lot of these,

you know, DEI, human resources,

like, you know, diversity and recruiting and like sensitivity parts of the

employment world, right?

These like large sectors, my understanding was these were initiated in response to civil rights laws that arose sort of in the latter half of the 20th century that sought to end historic forms of discrimination and harassment based on these various identity categories that were historically excluded from positions of like dignity, power, you know, remuneration, right?

So we're talking about like people of color, we're talking about women, we're talking about anybody who might be LGBTQ, right?

And these are efforts to remediate their historic exclusion, first in the law, and then in this like kind of broader industry or sector of

inclusion, diversity, and HR

professionals that stepped in to try and

assist

employers in complying with that law and dealing with the fallout when they don't, right?

But now what you're telling me, Mark, is that the Trump administration has sort of like re-envisioned civil rights law that was meant to ameliorate those historic exclusions into something that can be used, like maybe even to reaffirm them, right?

To say it's in fact the attempt to not discriminate against women and people of color that is a violation of civil rights law.

Can you tell me a little bit more about that line of thinking and where it comes from?

Yeah, I mean, I think you've interpreted it correctly.

I might put it a little bit more cynically.

I think that a lot of corporations have used DEI as a shield when they are accused of racism racism or sexism or discriminatory hiring practices.

They will put money into these programs and trainings.

And then if someone claims discrimination, they say, well, we couldn't be discriminatory because look, we do all this DEI stuff.

And that was to some degree encouraged by the federal government up until about January 20th.

I mean, the Equal Employment Opportunity Commission, which is sort of like the chief enforcer and interpreter of civil rights laws,

it has been promoting DEI work in the workplace.

And not for the cynical reasons I just laid out.

I mean, I think that there was a hope that some of this would really break through.

It would encourage employers to think critically about implicit bias and harassment and hostile workplaces and root out some of the ongoing discrimination that exists.

But, you know, as soon as Trump took office, he fired much of the EEOC and has now anointed a new acting chair who considers DEI to be discrimination, reverse discrimination against white people and against men.

And now she is putting out all of this guidance saying that if you have DEI, then you're going to be susceptible to enforcement actions.

And that is real whiplash.

That I will say, I think corporate America just doesn't like.

They really like stability.

It's now feeling to them a bit like they were tricked into adopting these policies that now are going to follow them around and mark them as discriminators.

But I do just want to add before we move on, one stinger to this, which is that to me, to some degree, the DEI orders are a distraction from Trump's bigger, broader repeal of all existing affirmative action programs in government employment and contracting.

So, a couple days after he issued the DEI orders, he repealed a series of executive orders that go back decades and decades

that required the government to be an inclusive employer.

I think affirmative action is almost a misnomer to attempt to build out diverse workplaces to ensure that they were not discriminating against people of color and against women to make a conscious effort to bring underrepresented minorities into the government, into government work.

This is stuff that survived Ronald Reagan, that survived George W.

Bush.

Trump has repealed that.

And I think that is going to have an even bigger and immediate detrimental impact on the lives of a lot of Americans who aren't straight white men.

And I just think all of this comes straight out of like the Republican Party and the Project 2025 ideology

that sort of takes the idea of colorblindness to a new extreme and argues that really it's straight white men who are being discriminated against today, that they are the ones who face violations of their civil rights and that there's way too much wokeness and it's going overboard and it's elevating mediocre people of color and women over qualified straight white men.

And this is an attempt to sort of right the ship.

And this is, I think, rampant throughout Project 2025, throughout a lot of the Republican Party's policy documents and Trump speeches.

I'm not surprised that they're trying to put it into law, but all of this stuff can be reversed by the next president.

The big question is: will they push something like this through Congress that really sticks for decades?

Right.

You're saying that this is like, you know, this is Project 2025.

It's clearly an sort of a very old GOP talking point.

At the same time, it's also clearly how someone like Elon Musk sees DEI, right?

Where like DEI sort of becomes

just code for the presence of non-white, non-male people in positions of authority and power, right?

And you see that, I think, very, very well in the military ban, which we're going to get to, where it's clear that like the presence of women in the military is taken to be a negative by itself.

It's not an indicator of bad practices.

Only through bad practices could these women possibly have risen to these, to these, um,

uh, to these positions of power.

And you got that with in Hexeth's confirmation hearing, right, where he kept going on about quotas that didn't exist because to him, there was just no way that the ladies were just succeeding

on the merits that they were measured on.

I also do want to briefly point out that

I always love it when the free speech to snitch line pipeline strikes again.

I feel like Republicans cannot ever safeguard anyone's freedom of speech.

Should you maybe report on your neighbor?

Do you need a 1-800 number you can call?

Just very, very fun.

And I think you're right that that's, of course, how the chilling effects of this will be suffused well beyond what the federal government is really able to directly influence.

The fear of being singled out, the fear of the bully pulpit,

the fear of having bad stories about you circulate through these kinds of tip lines seems to me is going to be...

a bigger motivator for extremely publicity averse corporations than any federal regulation ever could.

Yes.

And I think it'll encourage discrimination against women and people of color, right?

Because it casts a suspicion over all women and people of color in power for the reasons you just laid out.

You know, there's going to be a suspicion that they weren't, they didn't earn their place, they were DEI hires.

And so I think, you know, moving forward, in order to avoid being accused of wokeness and DEI,

there will be perhaps even moreover discrimination against non-traditional candidates applying for positions.

And that is, again, the intent of these orders.

Yeah, this strikes me as a function and part of like the

cynically wielded capaciousness of the term DEI.

Like Adrian, you were pointing this out, that like, you know, there are these

corporate programs.

I think those of us on the left tend to specifically and like, you know, those of us committed to identity-based social movements tend to kind of mock, right?

They are,

they are about covering your ass for litigation liability.

Sort of DEI industry was actually invented specifically by Sears, which at the time in the 1980s was one of the biggest employers in the country

as a way of forestalling this massive strike that was going to be put on, organized by the National Organization for Women.

It's a really interesting story.

And, you know, it was, it became,

it was invented as a sort of counterpoint to these social movements, but then in the conservative imagination, it's come to stand in for them, right?

And so because DEI can mean either a like sort of specific corporate initiative with sort of capacious goals, or because it can be kind of a euphemism just for the presence of women and people of color in positions of like dignity, power, authority, right?

That means that something like this snitch hotline, you know, I'm trying to, I'm trying to imagine like if you are a corporate employee with some right-wing grievances or a federal employee with some right-wing grievances, And you want to call the snitch hotline, like, what would you report exactly?

How do they delineate what is and is not

DEI?

Because there's a whole vocabulary now, which has, you know,

some place of prominence in the new Trump administration that just sees DEI as the moral offense to any white man who might have a non-white man boss, you know?

Well,

historian of the term political correctness here, they've been doing that to us for 50 years in academia, right?

Like people report these things to mostly conservative foundations, and like no one knows what the fuck any of it means.

And in the end, it was like, well, this person taught a class that has the word queer in it.

That's all that happened.

But like, it's still, it's the same as everything else, right?

It like gets lumped together.

And

I think you're exactly right.

The point is it increases risk.

And as Mark is saying, like, it,

these are some of the least risk-happy actors in America.

And

they're hearing the signals loud and clear, I think.

So one theme we've seen, I think, moving on is the, you know, the attempt to give like culture war grievance and like outgroup animus the force of like executive branch policy, right?

And that I think brings us nicely to the trans executive orders.

Adrian and I were texting last night and he kept talking about like, oh, I'm reading, I'm writing about this trans executive order.

And I was like, which one?

There's been so many.

So, Mark, could you like walk us through a little bit about the new administration's attacks on trans people and their civil rights and access to the public sphere?

And then we can get into the nitty-gritty about these different orders.

Yes.

So they fall into two buckets.

Essentially, there's the first order that attempts to ban transgender people from serving in the military,

that seems to threaten ejecting the many transgender people who are currently serving in the military.

Because

under President Barack Obama and then under President Joe Biden, they were allowed to enlist and to serve openly in the military.

And this order directs the new Secretary of Defense, Pete Hagseth, to craft some kind of policy that is anti-trans.

We'll get more details in the coming weeks.

This is already being challenged in a few different lawsuits, but the obvious goal is to prohibit trans people from enlisting, exclude and eject trans people who are already serving, and if somehow any trans people remain, to bar them from obtaining gender-affirming care.

And I just want to read from

this order because I think it's quite striking.

This is straight from the executive order.

Quote: Beyond the hormonal and surgical medical interventions involved, adoption of a gender identity inconsistent with an individual's sex conflicts with a soldier's commitment to an honorable, truthful, and disciplined lifestyle, even in one's personal life.

A man's assertion that he is a woman and his requirement that others honor this falsehood is not consistent with the humility and selflessness required of a service member.

So, this is horrific language,

sheer animus, and it's really quite different from Trump's first effort to enact a trans military ban in his first term.

In that go-round,

he tried to dress this up in a deep concern for military readiness and unit cohesion, and also some concern for the budget.

He argued that covering transgender people's health care was really expensive.

He argued that it was demoralizing for troops to have a transgender person among them, that it was a problem in showers and other intimate areas to have transgender people, and that it prevented them from being able to train properly, to deploy correctly.

All of that was pretext.

All of that was bogus, right?

There were no actual problems with transgender people in the military, but he tried to dress up in a pretext.

Now it is all out there, right?

He is not holding back.

He is not pretending.

This is just openly rooted in hatred and bigotry toward transgender people.

And that is also very much true.

of his other order, which is an attempt to severely restrict the provision of gender-affirming care to people under the age of 19.

And I'll just note that includes 18-year-olds.

That includes legal adults.

This order folds in people who are 18 and of legal age.

And the order attempts to deny coverage for gender-affirming care on various federal health insurance plans for federal employees, for members of the military.

It attempts to defund all medical and research institutions that support or provide gender-affirming care to people under 19.

So withholding appropriated money, withholding grants to hospitals, for instance, that have gender clinics for youth.

And it also directs the Justice Department to consider prosecuting doctors who have provided gender-affirming care under a few different laws that actually don't fit this purpose at all.

And I don't think that will work, but that's a whole other story.

That too rooted in, I think, obvious animus toward transgender people.

And I also think that by folding in adults, 18-year-olds, that is a trial balloon for a future order that would expand this way beyond young people, that would apply to all people, including all adults, and attempt to kick them off of

gender-affirming care by denying health insurance coverage or some other legal mechanism of enforcement.

The last order is the one that I've been really reading carefully over the last 12 hours.

And it's really interesting, right?

Like the fact that

there now is supposed to be a category of young people who are over the age of 18, who can, you know, buy guns, smokes, start an OnlyFans, all that,

but who mysteriously cannot consent to gender-affirming

procedures of any kind.

They mean even puberty block owning.

Yes, yes.

That includes hormone therapy, I should be very clear.

Yeah.

I mean, you're right.

It's already an adult

trans care ban, right?

So it's really quite amazing how, you know, I thought they would have been more incremental.

And I think you're absolutely right to say that like they're just really barely bothering to hide their animus, right?

There is the version of this argument that you can sort of launder where it's like about the very young and about the so impressionable.

They're all exposed to social contagion and all that shit.

Like you can get people to nod along with that, but they didn't go for that.

They went for a far more maximal version.

And I think that's really worth pointing out.

The second thing that I think is so interesting is, you know, I had forgotten that the first trans ban and the first Trump administration had been all about unit cohesion, right?

Like they were still reheating the arguments about gay people in the military and about gay marriage like in their first go-around with the trans panic.

This time, this seems far more oriented.

towards like internet, it's far more internationalized.

This is looking at how the UK is banning gender-affirming surgery, gender-affirming care, and that kind of thing, right?

Like they've become far more recognizably in their attitude towards gender and sexuality, part of sort of this

international illiberal movement, haven't they?

I certainly think so.

I also think that they believe they have the courts in their pocket this time around and they weren't so sure last time.

I mean, remember, when Trump took office in 2017, that was, you know, the Supreme Court that had decided marriage equality.

That was the Supreme Court with four liberals and Anthony Kennedy, who had some sporadic concern for the rights of minorities.

Now Trump enters office with a six-justice conservative supermajority.

And so I think that across the board, with everything we're talking about today, he and his aides are just less concerned about pretext, less concerned about coherence, less concerned about something they can sell to the courts.

They assume that they are starting with implicit approval from the courts.

And so, yes, they are adopting this language that the illiberal right has sort of peddled internationally about how this is protecting children from mutilation and from transing and all of that stuff.

But they also probably don't even think they need a reason.

That strikes me as campaign rhetoric and window dressing.

They're doing this because they can.

Yeah.

This might bring us to one thought I had about this sort of longer view legal strategy, you know, such that there is any behind a a lot of these EOs, is that it seems like the Trump administration is sort of like asking for the moon under the anticipation that there's going to be a TRO and that like some of it is going to get thrown out.

But I think that, you know, by the time the federal courts are done with some of these executive orders, policy will have still been changed in a pretty significant way, right?

Like I'm thinking about the

Muslim ban in Trump's first term, right?

It was a campaign promise he had made in pretty explicitly racist

terms, you know, and then he gets in and he bans travel from seven Muslim-majority countries.

And what the, when the Supreme Court, you know, ultimately does uphold this because they find a way to ignore his stated motivations for the ban, right?

Yeah, I think the Muslim ban is clearly the model here.

Um, you know, you come out the gate with the broadest possible version, it gets blocked, you refine it, it gets blocked again, you keep refining it until you figure out exactly where the courts are willing to draw the line and exactly what they're willing to let you do.

But again, you know, these are just much more conservative, Trump-friendly courts than last time around.

And so when they do come out swinging for the moon, they think they're going to get the moon and they don't think they're going to have to make many compromises.

And, you know, reading, again, that language in the transmilitary ban, I mean, that shows zero concern that the courts are going to be a check on this.

That shows to me that they just think they're going to win that case and most of these other cases.

And so, even though that is the model to try, try, try again until you got something that squeezes through the courts with enough votes, I just think it'll be a whole lot of an easier process for them in 2015 than it was in 2017.

Yeah, I mean, they might be just going by the fact that they listen to oral arguments in Scrimiti, right?

And that they're like, well, clearly they do not give a shit what the arguments are for a trans care ban.

They're just going to do it.

So this also brings me, I think, to the third trans executive order, which was issued a few days ago, which now feels like a few decades ago.

But there's one ordering that for the purposes, like for executive branch purposes,

the

agencies will only acknowledge two sexes, male and female.

Yes.

And it had a little like an Easter egg of fetal personhood in there, too, didn't it?

Yeah,

the sex that you are assigned at conception as an embryo, that that is the sex that you are locked to for your entire life under the federal government.

And under this order, all government agencies have to assign to you that sex, your embryonic sex, one might say, which, as you just indicated, Moira, suggests that embryos are somehow people that can have

definitive sex and seems to maybe lay the groundwork for some further orders down the road that try to establish fetal personhood or embryonic personhood, as the Alabama Supreme Court has already tried to do.

You know, that will have an immediate impact

in maybe a narrower way than some of these other orders, but still a really alarming way.

I mean, the State Department almost immediately took away the X gender marker for people applying for passports or renewing passports.

That is wild to me because intersex people exist.

Yeah.

And

that marker was actually partly the result of a court case in which an intersex person sued and said, I am not male or female as a matter of biological reality.

Now that it's gone, I have no idea what intersex people are going to do.

And the State Department and other federal agencies also claim that they're going to

only recognize

the so-called birth sex of a transgender person.

But

most states, including all blue states, allow you to change your birth certificate when you transition.

And normally the federal government doesn't undertake a holistic investigation to ensure that your current birth certificate is the one that aligns with what the government sees as your sex.

So I don't know how that's going to work.

I'm also not totally clear on whether this only applies prospectively.

The administration has suggested that it might, but it's been going back on a lot of its promises.

So there's a lot of chaos and confusion for transgender people right now, particularly over identity documents like passports and visas, where it's just unclear if transgender people can ever get legal recognition from this federal government or if Trump is going to just mandate four years of relentless discrimination against trans and intersex people.

I understand this also has some implications for trans people incarcerated in federal prisons.

Is that true?

I know that there is a lawsuit already challenging the order on these grounds.

Yes.

So

this order purports purports to force transgender people in federal prisons to essentially detransition and to be housed with people from their sex assigned at birth.

So it purports to cut off all access to gender-affirming care in prison.

That includes hormone therapy.

Again, that is just forcibly detransitioning people.

And it will force, for instance,

a transgender man to be housed with cisgender women and force a transgender woman to be housed with cisgender men, which is, we know from years of experience, certain to increase the odds of sexual abuse, of violent assault among other inmates.

It's going to be really devastating.

It is being battled in court.

It's not clear at all that Trump has the legal authority to withhold gender-affirming care, especially from adult patients.

But, you know, this is the new frontier.

And,

you know, as Adrienne said, the Supreme Court sounds like it's going to abandon the rights of transgender people after oral arguments in the Scrimetti case.

So, this is one where Trump just thinks he'll be able to get away with it.

One of the things that looking over these is so chilling.

More, I just call them Easter eggs.

They're these things that have buried further down where you're like, oh my God, like this is like this is even scarier.

And I guess I'd like you, as a legal expert, to sort of tell me how that then works.

I mean, because ultimately, this is just, as you say, these are sort of the marching orders that the executive gives to its organs, right?

It's saying, like, this is how we will now enforce existing statutes.

But, and I guess the question is,

these really serious kind of hat tips towards, let's say, fetal personhood or, you know, the threat to

come after parents who let their children transition in the most recent transcare ban.

What do you make of those?

Is that essentially red meat for someone, or does this really have, does that have potential teeth?

Well, so some of it is red meat, and I think some of it is just chum for the base.

And I'll note that Trump has issued some really awful orders on abortion.

He has pardoned

some extremist activists who blockaded abortion clinics illegally.

His Justice Department is going to stop enforcing the federal ban on the blockade of health clinics, reproductive health clinics.

He has reinstated the Mexico City policy, the so-called global gag order that strips money from organizations around the world that even mention abortion.

But he has not gone further yet.

Now, that is a big yet.

He's got plenty of time left to wreak havoc, to try to restrict medication abortion, to try to prosecute doctors who provide abortion, especially medication across state lines.

But he hasn't done it yet.

And I think that some of this stuff, like the fetal personhood wink-wink, is maybe an indication to his base that he's going to get there, that he can't do everything at once.

Yes, he's flooding the zone, but they have to be at least a little bit careful in how they structure this stuff.

And by planting these, I don't, I don't even know, time bombs, he's just telling all of his coalition, don't worry, I will tend to you as well.

I might not be there yet, but I will get there.

And I'll also just note: I mean, I'm not usually one for Nazi comparisons, but

people may be familiar with the expression working toward the Führer.

This was how Adolf Hitler governed.

He would sort of set out a broad and vague goal and then encourage his underlings to try to work toward that goal in increasingly extreme ways.

I mean, I think that perfectly describes how Donald Trump operates, right?

He is not a stickler for policy details.

He doesn't care about or even understand policy.

What he does is declare a very, very broad goal or vision and then hire a bunch of people who have extreme and radical views who are in constant competition with each other to work the fastest and the hardest to achieve that vision and that is a lot of what I think is going on with these orders yeah or to even fill that vision with the content it may not have originally had for the very simple sense that Trump doesn't have a whole lot of content it's not that he like was was more well-meaning he just didn't mean anything by it or you know different people were giving him different wordings and yeah i think that different parts of the coalition are going to try to hang different things onto these executive orders.

And I definitely see your point that a lot of the

sort of the back end of these executive orders clearly is drafted with that in mind.

That some freak out in Idaho or wanting to show up in front of Judge Kuzmeric in Texas can go through that and be like, okay, I got a test case for this one.

Let's do it.

Speaking of Easter eggs, I wanted, while we still have you, Mark, to turn to

Trump's orders on

citizenship and the border and to talk about his taking up of a little Easter egg that had been left by Judge James Ho of the Fifth Circuit,

saying that, you know,

in this opinion,

Judge James Ho, friend of the pod, not to be confused with Judge Dale Ho, who's a very Judge Ho.

Never.

But James Ho had made an argument in one of his Fifth Circuit opinions saying that the 14th Amendment's birthright citizenship provision would not be extended to, say, the offspring of an invading army, right?

And lo and behold, one of Trump's first

actions in his new administration was to declare the border an invasion and shortly thereafter attempt to functionally like nullify Section 1 of the 14th Amendment by throwing out birthright citizenship.

Can you like, am I crazy in thinking?

I mean, I should never

underestimate the potential for like malevolent conspiracism here, but am I crazy in seeing these as linked orders?

So I don't think you're crazy at all.

I think there is a connection.

What relief?

I do, like, I'm with you 100% on that.

And yet, at the same time, I do think it's a little bit weird that the administration has not linked the two orders as explicitly as you might expect.

So, just to back up a little for listeners who aren't aware, the very first sentence of the 14th Amendment guarantees birthright citizenship to almost everyone who's born in the United States.

There is an exception that's long been understood that was discussed by Congress at the time in ratifying this amendment that was recognized by the Supreme Court not long after:

that children of diplomats and children of invading armies do not get birthright citizenship because they are subject to foreign jurisdiction.

They are not fully subject to American law.

There are all of these international laws that apply to the children of invading armies and of diplomats.

So they are the exception.

But that's it.

That's pretty much all that is relevant today.

And for years, Judge James Ho, friend of the pod, I suppose,

has actually been like the most eloquent conservative defender of birthright citizenship.

He wrote a really, really good law review article some years ago explaining this, explaining those exceptions, talking about how they operate, why they're there, and explaining that they do not apply to the children of immigrants, including undocumented immigrants, because,

you know, Congress actually discussed and debated the issue of immigrants' children and said, you know, as a rule, they become citizens.

But James Ho recently reversed himself last year.

He issued this really crazy opinion arguing that there was an invasion of migrants at the southern border.

And then he quickly did a follow-up interview with Josh Blackman, a Republican partisan law professor, in which he said, well, of course, you know, when migrants are invaders, they're basically an invading army.

And that means that their children can be denied a birthright citizenship.

Taking all that together, you see this new emerging argument for denying birthright citizenship to the children of undocumented immigrants.

All the government does is declare that they are invaders, says that their children are not subject to American jurisdiction, and denies them citizenship.

I will note that Trump's order purporting to deny birthright citizenship to the children of immigrants also applies to lawful immigrants.

It applies to immigrants who have visas, including H-1B visas, immigrants who have been here for years, who are just awaiting their green card.

So this does not just apply to undocumented immigrants.

But now to tie that all together, Trump did issue an order declaring that there was an invasion at the border.

He did issue this order I mentioned declaring the end of birthright citizenship, but he didn't link them together at all.

He did not say, I'm ending birthright citizenship because there is an invasion.

And his Justice Department has not been raising that argument in court so far.

So I think that you're not conspiratorial, Moira.

You might just be a little bit smarter than the people who are writing these orders who have not yet figured out how to patch together the various sort of legal conspiracy theories that would provide intellectual scaffolding for the end of birthright citizenship.

Smarter than a Trump administration lawyer, my God.

Colbar.

Colbar.

On your tombstone, it'll say that.

I mean,

it would be very, very funny to claim that people who hold H-1B visas are outside of the jurisdiction of the United States when they hold H-1B visas.

on the jurisdiction of the United States.

Like their literal status is tied up with the thing you claim they're not subject to.

That's amazing.

Yeah, I mean, it doesn't make any sense, right?

And undocumented immigrants, too, we can arrest them.

We can detain them.

Like, of course, they're subject to American jurisdiction.

They are not like diplomats, they are very different.

With so many of these things, it seems unclear whether or not they're retroactive.

Birthright citizenship is not.

It's not.

It's prospective, not retroactive.

So, like, I've heard like all very various kinds of people pointing out, like, okay, well, this would invalidate the citizenship of Usha Vance, for example, who was born in the United States to parents who were on a visa.

That's not, it's not taking anybody's citizenship away yet.

It's about babies who are being born now.

Well, I'm told that the people who arrived on the Mayflower did not fill out the correct paperwork either.

So I'm thinking it's looking kind of rough for some Boston Brahmins there too.

Great, great, great, great, great, great grandchildren of

border crossers.

Yeah.

I mean, I think the key word is yet, though, right?

Because there's nothing in this order that limits it to prospective newborns, except the sentence, by the way, this doesn't kick kick in until February.

Like, if this were upheld in court, then the Trump administration could, I think, start applying it retroactively as well and stripping people of birthright citizenship, which is especially crazy because birthright citizenship is actually the reason why the vast majority of Americans have citizenship in the first place.

Like when you are born in America, the government doesn't demand to know your parents' immigration status.

Like when you send in your child's birth certificate to get them a social security number, they don't send agents to investigate whether you were on a H-1B visa or a green card.

Like you are a citizen because you are born here.

And so if the Trump administration tried to do this retroactively, then a lot of us would suddenly not have a very clear way to prove our citizenship.

I mean, maybe we'd say our parents are citizens, but they got citizenship probably because they were born here.

So it really does lead to a place of confusion and chaos that I don't think the Trump administration wants to go.

At least not yet.

Well, I mean, I think what it is, is who is getting challenged, right?

There's already, you know, stories of Puerto Ricans being, you know, being detained, even though they're U.S.

citizens.

And I mean, that's what it would boil down to, right?

That like, if you look right, if you register in the right part of the, of the paint swatch,

you basically will not be challenged.

But if you look wrong in any way, you could be, right?

I think Mark is also pointing out something interesting, which is that the Trump administration has conflicting ambitions, right?

Because on the one hand, they want to create this like vast punitive network, which can deprive rights and dignity of all different kinds of people

based on some of the orders that we've gone through today and then some of what we know that the rest of their ambitions are.

But on the other hand, they want to dismantle the administrative state, right?

They're trying to get all these federal employees to take a buyout.

They've got Elon Musk trying to, you know, dramatically reduce the federal workforce the way he reduced the Twitter workforce, I guess.

And the notion that you can do things like,

you know, strip citizenship from people while at the same time firing all the bureaucrats who would be tasked with doing such a thing.

seems to me to be like a contradiction at the center of this project.

I certainly think so.

And I also think that Trump is overestimating how many capable and competent lawyers and policy experts are waiting in the wings to step in and help him achieve these policies.

I mean, he's purging all of these holdovers and commissioners and board members and bureaucrats from every corner of government, right?

The inspectors general, members of the National Labor Relations Board, of the Equal Employment Opportunity Commission, of, you know, the Justice Department.

He's claiming...

a right to fire civil servants who have merit protections under federal law.

The goal is not just to fire these people, but to replace them with loyalists who will do his bidding.

But again, I just don't think there are that many people who fit the bill.

They've had years to gather this army, and the army hasn't really materialized.

It's still a relatively small world because I just frankly think that most people who are intelligent and competent enough to do this work don't want to do evil, cruel

work for the government.

Like that's just not why most government employees are in this.

That's one of the reasons you see so many resignations from agencies like the Justice Department that have been taken over by, you know, hacks who want to do bad work.

Like government employees tend to be good people and they want to help other people.

They don't want to inflict harm.

So I do think the hollowing out of the administrative state is going to be a persistent problem for Trump over the next four years.

I think that as he tries to repeal old policies, as he tries to enact his own policies, he's going to keep running into roadblocks of competence.

And then the question becomes, well, will that matter in court, which is where it all kind of shakes out, or will he have the court so firmly in his corner that it won't matter?

I mean, remember, in his first term, Trump screwed up several times in this realm with

administrative law that came back to bite him.

He tried to add a citizenship question to the census, but his bureaucrats were really sloppy and they lied about it.

The Supreme Court blocked it.

He tried to repeal DACA so that he could deport DREAMers, but the whole process was really sloppy and illegal and the Supreme Court blocked it.

But that was a different Supreme Court.

So if he continues to do stuff that's both illegal and really sloppy and he does not have the brightest minds working for him and it all looks like pretty crappy work product and it winds up before the Supreme Court, do they just close the gap for him and say good enough and rubber stamp it?

That is perhaps my single biggest question moving forward.

Yeah.

That might be a decent place

to wrap up.

You know,

a nice high note on the on the notion that these people are mostly too stupid to achieve everything everything that they want, even though I do think it's terrifying that now we are at the mercy of the federal courts.

Yeah, that we're at that point where we can't decide whether they're the nine most terrifying words or the nine best words in the most hopeful words in the English language.

I'm from the government and I'm a Trump replacement hire.

Thank you so much, Mark.

Mark, it was so lovely to have you.

Thank you for doing this at the last minute and for walking us through the last, you know, days of craziness.

I feel like I've got a lot more clarity now after talking to you.

Yeah.

thank you so much for having me on.

A pleasure to be here.

In Bed with the Right, we'd like to thank the Michelle R.

Clayman Institute for Gender Research for generous support.

Jennifer Portillo for setting up our studio.

Our theme music is by Katie Lyle.

Our producer is Megan Kalthas.