Will Trump defy SCOTUS as his executive orders get overturned?

 David French writing for The New York Times:

Let’s briefly make our way through Trump’s birthright citizenship order. It’s extraordinarily broad. It doesn’t just block citizenship for children of illegal immigrants, it also blocks citizenship for children whose parents are legally present in the United States if they don’t have permanent status when their child is born.

This contradicts the language of the 14th Amendment, a controlling federal statute and Supreme Court precedent. The 14th Amendment says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

Children of illegal immigrants are quite plainly subject to American jurisdiction. They’re bound by American law every moment they’re on American soil. As Steve Vladeck, a law professor at Georgetown, explained in an excellent and comprehensive Substack post, the phrase “subject to the jurisdiction thereof” was meant to exclude children of diplomats, children of Native Americans who were subject to tribal sovereignty, and “children born of alien enemies in hostile occupation.”

These principles were outlined in an 1898 Supreme Court case called United States v. Wong Kim Ark. But one doesn’t have to rely entirely on a precedent more than a century old. As Vladeck points out, in a 1982 case called Plyler v. Doe, the court held that “no plausible distinction with respect to 14th Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Three years later, in Immigration and Naturalization Service v. Rios-Pineda, the court observed that the undocumented immigrant parents in the case “had given birth to a child, who, born in the United States, was a citizen of the country.”

Trump may try to claim in court that undocumented immigrants are an invading, occupying force. Indeed, one of the executive orders he signed after taking office asserted that America is facing an “invasion” at the hands of migrants on its borders. Can he deem them hostile occupiers and deny their children citizenship?

No. As James Madison said in The Report of 1800, the term “invasion” applies to an “operation of war.” Any other reading of the term reaches an absurd and dangerous result. If economic migrants are “invaders,” can they be targeted with drone strikes? Gunned down at the border by the 82nd Airborne Division? Can we suspend habeas corpus to stop immigrants? Obviously not. Several federal courts of appeal have reached the same, sensible conclusion. Illegal immigration is not an invasion.

I can undertake a similar legal analysis of many of Trump’s executive orders (though not all are legally deficient). Trump’s order purporting to block enforcement of the law banning TikTok is almost comically illegal. It contradicts the plain language of the statute, and presidents do not have the constitutional power to rewrite statutes by executive fiat.

But this legal analysis skips a key question: Will Trump comply with the rulings of the Supreme Court? Or will he disregard rulings he doesn’t like, demand that the executive branch bend to his will, and then pardon the men and women who might criminally defy the Supreme Court?

If you think this scenario is far-fetched — yet another example of “pearl clutching” by hysterical Never Trumpers — remember that in 2021 JD Vance said in a podcast, “I think that what Trump should do, like if I was giving him one piece of advice, fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people. And when the courts — because you will get taken to court — and then when the courts stop you, stand before the country, like Andrew Jackson did, and say: ‘The chief justice has made his ruling, now let him enforce it.’”

Jackson’s statement is probably apocryphal. His own response to the Supreme Court was far more complex than the quote implies, but Vance’s intent is obvious. He was signaling that Trump could defy the nation’s highest court.

Vance stood by that idea in 2024, and now — in 2025 — Trump has fundamentally rebuked the American justice system by ordering the pardon and release of more than 1,500 people lawfully charged for their role in arguably the most dangerous insurrectionary act since the Civil War.

I continue to hope that Trump will begin to behave as he did before he attempted to steal the 2020 election. As The Times’s Adam Liptak reported in 2023, “the Trump administration had the worst Supreme Court record of any since at least the Roosevelt administration.” Yet Trump did not defy the court. Time and again, he lost and then complied with the rulings.

But 2020 was different. He lost every important court case challenging the outcome of the election, yet rather than yield to the rule of law (as Al Gore did when he faced a bitter Supreme Court defeat in 2000), he lied to the American public, tried to illegally cling to power and instigated a mob.

Trump’s pardons tell us that we’re far more likely to experience the President Trump of 2020 (and especially 2021) than the President Trump of 2017 to 2019. As National Review’s Noah Rothman argues, Trump is already planting the seeds of more political violence.

“Republicans who support these pardons,” Rothman writes, “will sacrifice the moral authority they would have needed if they were to convincingly argue for the preservation of domestic tranquillity.”

Rothman is right. Trump’s friends can commit acts of violence on his behalf. Trump’s enemies have to face danger on their own. And that reality hovers over every presidential decision Trump makes.

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