The Just Security Podcast

What Just Happened Series: Trump’s Immigration Executive Orders

• Just Security • Episode 96

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In just his first two days back in office, President Donald Trump has already taken sweeping measures on immigration, the environment, the U.S. military, and the structure of the federal government.

With so many executive orders, policy changes, and novel actions, it’s easy to wonder, “What just happened?” In this podcast mini-series, we help to answer exactly that question. 

On each episode of “What Just Happened,” we’ll talk with leading experts, from former government officials to professors – the people who understand how government works from the inside and have studied the issues for years. They will explain the legal background and implications of how the Trump administration’s actions affect how the U.S. government operates in Washington, across the country, and around the world.  

This is not a political podcast. We are explaining the meaning and consequences of policy changes that may not be immediately apparent. Any opinions expressed are those of the speaker.

Today, we will focus on President Trump’s Executive Orders, Proclamations, and other policy announcements regarding immigration and the border. Joining us is Steve Vladeck. Steve is a professor at Georgetown University Law Center.

This mini-series is co-hosted by David Aaron, Tess Bridgeman, and Ryan Goodman. 

Show Notes:  

Ryan Goodman: In just his first two days back in office, President Donald Trump has already taken sweeping measures on immigration, the environment, the U.S. military and the structure of the federal government. With so many executive orders, policy changes and novel actions, it's easy to wonder, “what just happened?” In this podcast mini-series, we help to answer exactly that question. 

I’m Just Security’s Co-Editor-in-Chief, Ryan Goodman. Typically, we'll also be joined by our Co-Editor-in-Chief, Tess Bridgeman. She can't join us today, but look forward to her on the next podcast.

David Aaron: And I'm David Aaron, a former federal prosecutor with the Department of Justice's National Security Division. On each episode of What Just Happened, we'll talk with leading experts, from former government officials to professors — the people who understand how government works from the inside and have studied the issues for years. They will explain the legal background and implications of how the Trump administration's actions affect how the U.S. government operates in Washington, across the country and around the world.  

This is not a political podcast. We are explaining the meaning and consequences of policy changes that may not be immediately apparent. Any opinions expressed are those of the speaker. Today, we will focus on President Trump's executive orders, proclamations and other policy announcements regarding immigration and the border. Joining us is Steve Vladeck. Steve is a professor at Georgetown University Law Center. For reference, this episode of What Just Happened is recorded at around 11am on the morning of Wednesday, January 22, 2025.  

Ryan: Thanks, Steve, for joining us on this inaugural What Just Happened.

Steve Vladeck: Happy to be here, although I wish it were under less “what just happened” circumstances.

Ryan: I guess the first question I have is a cross-cutting question. There are dozens of these executive orders that just came out in the last 48 hours, and it'll take a very long time to fully digest them all. But one question that occurred to me early, Steve, in some ways, I can't think of a better person to ask this question, what do you make of the assertion of executive power across the different executive orders, for example, the claim to Article II authority to potentially override statutes and the like, so that people can understand from a big picture perspective, like, what is the theory of executive power that's being articulated by Trump 2.0, or the Trump administration second term, and how might that implicate other policy issues down the line that are not necessarily expressed in these executive orders? 

Steve: Sure. I mean, I think the first answer is the easy one, which is, it is a pretty limitless theory of executive power that is being articulated across these executive orders. You know, we saw back in the heyday of the George W. Bush administration a slightly more nuanced version of this argument, which was that there were certain statutes that were unconstitutional insofar as they interfered with the Commander-in-Chief's ability to regulate and control the armed forces during war time. Even that argument, Ryan and David, was viewed as pretty extreme at the time, and this is, I think, a pretty significant step beyond that. 

That said, I mean, I think we should, just to help folks understand what's going on, break this whole universe of executive orders into five categories, because it's really only, I think, with regard to two or three of them, that this theory of executive power really matters. So, category number one is just rescinding prior executive orders. You know, those, I think, might be controversial as a policy matter, not that many of those, I think, depend upon particular assertions of executive power. 

Category number two is, like, restructuring the executive branch. So, you know, creating this DOGE office, or at least repurposing an existing White House office into DOGE, is an example of that. Trying to implement Schedule F, the idea that we're going to convert more and more civil service positions into political positions, is an example of that. That's where you might see a little more of this assertion of executive power. 

Category three, to me, is changing the executive branch's prevailing interpretation of a statute or of a series of statutes. For example, the, you know, to me, noxious executive order saying that for federal purposes, there are only two genders, right? Male and female, and that's how they're going to interpret various statutes going forward. You know, Ryan, that strikes me less as an assertion of executive power in the constitutional sense, and more as sort of the executive just changing its mind about what a statute says. 

And then as the last two categories, where I think we'll see the most litigation over executive power, the fourth category is directly taking actions that are affecting others. So, the birthright citizenship executive order is an example of this. Some of the other immigration policy stuff. And then last, ordering other people to consider taking action, like the order directing on the Secretary of State to consider whether drug cartels should be designated as terrorist organizations. And so, Ryan and David, I know that's a lot, but what I would sort of reduce it to is, it's in like a handful of these contexts where we're seeing the Trump administration claim extraordinary executive power by asserting that statutes are unconstitutional. Those assertions don't mean anything right now, but they are basically previewing what will surely be the government's litigating position when these actions are challenged, as many already have been in court. So, sorry for a long-winded answer, but there was a lot to sort of tee up there.

David: Well, let's turn to a couple specific proclamations and executive orders that we've seen on day one. Immigration and border security were obviously a big focus, and Steve, I'm not exactly sure where each of these kind of falls in that hierarchy that you described, but there was a presidential proclamation entitled, “Guaranteeing the States Protection Against Invasion.” There was an executive order entitled, “Protecting the American people Against Invasion.” And the proclamation was interesting because it invokes Article IV, Section 4 of the Constitution, which provides the United States will protect each state against invasion, but it doesn't define invasion. And the proclamation finds that there is an invasion at the southern border, and then invokes the president’s, as you were alluding to, express and inherent powers under Article II. Under that claimed authority, there's a bunch of new restrictions on entry into the United States that get imposed. How firm is the president’s constitutional ground on the Article IV finding of an invasion, and to what extent does that matter?  

Steve: So, I think it's about as firm as quicksand and how much it matters, I think, is going to depend on litigation. So, there are a couple of different reasons why the Trump administration might have thought it valuable to make that public statement. The first is, there is ongoing litigation challenging various actions being taken by the state of Texas, where Texas has argued that there is, in fact, an invasion at the southern border. President Trump's proclamation will surely be making its way quickly into briefs in those cases where Texas says, don't take our word for it, the federal government itself has said there's an invasion. 

David, that's not preclusive. I mean, courts are in a position to decide for themselves whether that's true, but that also, even if it were true as a matter of fact, it's not clear what legal authorities that triggers beyond the ones that are already being invoked. So, you know, I think we have to be careful to separate out when these are, sort of, rhetorical moves and when these are actually, sort of, direct action moves. So, the invasion claim, I think, is meant to provide constitutional defense to the litigation already underway, challenging both existing border actions and soon to happen border actions on the ground that they're inconsistent with the relevant statutes. I am sure that we're going to see arguments that those statutes have constitutionally implicated limits, and that those limits are implicated by this invasion declaration.  

The other place where the invasion piece matters is, you know, there have already been, I think, three or four lawsuits brought challenging the birthright citizenship executive order. You know, one of the only arguments that could even be non-frivolously made in support of the birthright citizenship executive order is that the relevant Supreme Court precedent, this 1898 case called Wong Kim Ark, specifically distinguished, right, the children of foreign “invaders” from those who would have birthright citizenship under the Constitution. And so, maybe the idea is that proclamation of an invasion gives the government a bit more of a leg to stand on there.

You know, David, I'm skeptical that that's going to be dispositive, but I think it's all meant to provide further ammunition for both the federal government and the cooperating states as they are defending against the lawsuits that are already underway and that are to come.

Ryan: Can I just drill down on one part of that? I think it’s so interesting about birthright citizenship as the, you know, one of the forefronts of litigation and some of the extreme positions that are taken in the executive orders. I think, you know, even their drafters might self-describe them as extreme. So, in the birthright citizenship, as you described it, you know, the, maybe, the one, one, one, way you could get there is potentially on this idea of, like, an invading force, and then you'd have to claim that this is an invasion. 

But it's very good, I think, for listeners to know that the birthright citizenship executive order also applies to legal immigrants. It applies to people that are perfectly legally authorized to be in the country on long term visas, multiple years, et cetera, and their children are stripped of the right to be citizens by birth. And I guess I have a couple questions. So, one is, they can't be invaders. And then, just to get your mind to wrap around the kind of litigation posture, and especially, your sense of how the Supreme Court might end up on that one at the end of the day. Do you think that they might be taking — I guess, here's my question. Do you think they might be taking an extreme position in the order on the hopes that the Supreme Court splits the baby and goes for the other part, rather than the Supreme Court understanding that the entire order itself might need to be held unconstitutional?

Steve: Yes, and we have precedent for that. I mean, you know, if folks remember the travel ban litigation, you know, the version of President Trump's travel ban that the Supreme Court ultimately upheld in June of 2018 was the third iteration of the travel ban. The first one was, like, preposterously overbroad. It's why you had that crazy scene at the airports that last weekend of January in 2017. The second version was overbroad, too. So, Ryan, I think, yes, it is possible that the birthright citizenship border is so remarkably capacious, so that it looks like only applying it to children of undocumented immigrants is somehow a moderate position. 

I will just say, I don't think that history is going to repeat itself. I am actually fairly confident, even with this Supreme Court, that the birthright citizenship executive order, both in its current form, and even in a more limited form, doesn't have five votes. It might have two. It might even have three, which is horrifying unto itself. But, you know, this is not one of the examples, despite all the cynicism I think a lot of us have about the Supreme Court, of a context in which I expect, you know, Chief Justice Roberts, Justice Kavanaugh, maybe even Justice Barrett, to go against the, like, very, very settled weight of precedent. 

If I can add one more point, I mean, I think the other thing that folks, I hope, will start thinking about is the way these cases are going to get to the Supreme Court, it’s going to be very quick. You know, the first hearing on a preliminary injunction against the birthright citizenship order is scheduled for this Thursday. You know, it's possible that there will be emergency applications asking the, you know, the appeals courts and then the Supreme Court to put the order back into effect as early as next month. And so, I think one of the things we're also going to see arising out of all of the executive power and executive order chaos out there is a real flurry in emergency applications at the Supreme Court where the justices aren't necessarily being asked to resolve whether these policies are legal or not on the merits, but what the status quo should be while the litigation challenging them plays out. 

David: Along those lines, Steve, are there any early indicators people should be looking for to see which way things are going to break legally, what approach the Supreme Court or the circuit courts are taking towards these orders as they roll out? 

Steve: I mean, I think it's too soon, but I do think that what we're seeing, at least in the early days, is that the folks who are challenging these new policies on President Trump's part are taking a page from the Republican playbook during the Biden administration. So, if you look at where these cases are being brought, a bunch of them are being brought in New Hampshire and Massachusetts. That might strike folks as a little odd, until you add the context that the First Circuit, the federal appeals court in Boston, is the only federal appeals court at the moment with zero active judges who are appointed by Republican presidents. That seems like a pretty important data point. We're also seeing lawsuits being brought in Seattle, which means they'll be in the Ninth Circuit, which is not quite as left of center as it used to be, but still, I think more left of center than, say, the Fifth Circuit. 

So, David, I don't know how the courts are going to react, but I do think that two things are almost certainly going to be true. The first is, a lot of these policies are going to be blocked. I mean, President Trump had about as bad a track record during his first term when it came to the success rate of his administrative law cases as any president we've ever seen. And if anything, these policies are more extreme and, in some respects, have even more glaring legal problems with them. And in so far as, you know, President Trump himself appointed a whole bunch of judges who might be more sympathetic to those policies, you know, a lot of these lawsuits can be steered away from them. So, point number one is that I think folks should be following the litigation carefully. 

And then point number two is, you know, I think folks should not give up the ghost on the Supreme Court. I think a lot of progressives especially have become very cynical about the Supreme Court, and it's not hard to understand why, given events of the last couple of years, given Dobbs and Bruen, the major questions doctrine, the Trump immunity ruling. I am skeptical and critical of those as well, but I think this court understands, or, at least, you know, enough of the justices understand that, with the Republicans in Congress basically showing zero independence from President Trump, the court is it. And, you know, that's an unfortunate place to be in, but I have faith, at least in the short term, that this court is going to be more of a speed bump to President Trump and to these policies than, you know, the more cynical views of the current court might lead us to believe.

Ryan: Can I jump in with a follow-up question? What would be the parts of these orders they would put in a very different basket, that they are essentially policy changes that could happen under any administration, if they so desire, to go to that level, that are insulated from litigation? So, for example, you know, in the last “what just happened” kind of 24 hours, lifting up the policy about doing ICE raids inside religious institutions like churches and schools.

Yeah, so are there things that we should maybe also talk about, or just mention, that are in a category where people should understand if there's a debate to be had, it's on policy grounds?

Steve: Sure. I mean, so, I think, you know, those kinds of focuses on how the executive branch is going to enforce statutes, Ryan, where we all agree on what the statutes say, and we all agree that the statutes give enforcement discretion to the executive branch, when the executive branch says we're going to prioritize this over that, you know, we can have policy debates about that, but that's not subject to litigation. You know, when the executive branch restructures the executive branch. So, you know, the White House has already gotten rid of, for example, the Gender Policy Council, which was a very important focus for not just reproductive rights work, but other sex-based discrimination work during the Biden administration. You know, I think that's really bad as a matter of policy. I think it is perfectly within the president’s rights as a matter of law. You know, I think there's some litigation that could arise out of revoking security clearances, but granting them, I think, is easily within the president’s discretion. So, even though one of the executive orders creates a remarkably accountability-free way to grant security clearances to a whole bunch of people who really ought not to have them, that's not, you know, that's something the president has the power to do, and that's really just sort of a policy thing. 

So, you know, I think one of the tricks for all of us in the Trump administration is going to be separating out things that we might say are lawful but awful, and things that are legally dubious, if not clearly unlawful. And, you know, I think there's going to be plenty of lawful but awful, where the problem is going to be that the policy checks that might have previously constrained the president’s sort of willingness to do this are all gone, where it’s not just that he has, you know, one-party Republican control of Congress, but a Republican Congress that has shown no signs of any, you know, willingness to stand up to President Trump. And so, that's why I think we're going to have to really be careful about, sort of, not everything that is bad policy is unlawful, but plenty of this stuff is unlawful, and drawing that line is going to be something that, you know, hopefully this podcast and our work outside of it will help to elucidate. 

Ryan: Steve, just to jump in on one other question, when you're talking about executive power, could you talk a little bit about executive power vis-à-vis the state and locals, and since we're talking about what just happened, what just happened in the last two hours? So, putting you on the spot a little bit, if that's okay, is that The Washington Post is reporting that the Department of Justice has issued this memo saying that, green light, to essentially use the Federal Criminal Code to go after state and local officials who do not cooperate with the mass deportation plan. So, what's your sense of that almost as a kind of a first impression, or I know that you've thought about parts of this in the past?

Steve: Yeah, I mean, I guess my first sense is, I think this is a directive that is meant as much to intimidate state and local officials as it is to actually do anything direct, and to try to sort of discourage and disincentivize state and local officials from taking any actions to try to, sort of, protect those immigrants who are now in jeopardy under these new enforcement priorities. If they actually were to carry through on any of this, I mean, you know, I think the relevant criminal statute is 8 U.S.C. § 1324, which is basically a general prohibition on harboring, you know, non-citizens, who are, you know, subject to removal. You’d have to read the statute pretty broadly to get to any of the actions, at least historically, that so-called sanctuary jurisdictions have taken. But Ryan, I think we'd also get into a pretty big fight over a 1997 Supreme Court decision called Printz v. United States, P, R, I N, t, Z, where Justice Scalia, ­—— and I've always thought this was actually one of Scalia's better, if not opinions, at least better holdings, Like, when I teach the, sort of, the cases that divided the Rehnquist Court ideologically, this is actually one of the ones I'm very sympathetic to, Printz stands for the basic proposition that the federal government can't commandeer state law enforcement, right, that state law enforcement officers can choose to enforce federal law, but you can't make them. And I'd be really worried for what it would say about federalism in a world in which that were no longer the law, I have actually a fair amount of faith that this court and the federal courts in general would be pretty aggressive in enforcing Printz if anything direct were to come of it. The problem is that this directive will have an impact even if no one's ever prosecuted, because what it will do is, it will force state and local officials to look over their shoulder, to think twice, right, before taking any measures to try to protect or otherwise look out for, right, members of their communities who are already there, but who are now facing the, you know, the potential threat of these new immigration measures at the federal level. 

David: Well, Steve, that's very valuable context for what just happened and important notes for what to look for around the corner or down the next stretch. Thank you very much.

Steve: Thank you. Thanks for having me, guys.

Ryan: What Just Happened is a mini-series of the Just Security podcast. This episode was co-hosted by me, Ryan Goodman, and David Aaron. It was produced and edited by Paras Shah with help from Clara Apt. 

Special thanks to Steve Vladeck. You can read all of Just Security’s coverage of the Trump administration executive actions on our website. If you enjoyed this episode, please give us a five-star rating on Apple podcasts or wherever you listen. 

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