[If Donald Trump] is not quite an “edgelord” in the Very Online sense of the term (he has been known to consume social media posts in print form), he has clearly harnessed the idea—novel in high-level modern politics—that all attention is basically good, and that you can dominate a political era by making people talk about you and you alone, even if they hate you. Throughout the Trump era, but especially during his first term, those seeking to hold Trump accountable have debated what to do about this dynamic—not least the news media, which has had to reckon with the uncomfortable fact that the scrutiny it applies to Trump is ultimately a form of attention that Trump can co-opt and weaponize. [my emphasis] (1)This is the classic show business cliché at work that all publicity is good publicity. (Of course, there are always actors or rock stars who manage to provide the proverbial “exception that proves the rule.”)
But by transforming himself from an actor to a politician to a cult leader, Trump has made it possible for himself to create endless diversions and distractions by saying obnoxious, dumb, or crazy things. Creating distractions is not something unique to non-democratic, authoritarian regimes. But it is a favorite tool of authoritarians:
To rule by distraction is a time-tested tool of autocratic and authoritarian regimes. It is a go-to move for non-democratic regimes when faced with a challenge, domestic or international. As the name suggests, this approach is simple but effective. The idea is to create enough chaos and distraction that all eyes remain on that. The key is to make “normal” a moving target (i.e. change what it means to be normal on a regular basis). Doing so allows for drastic steps to take place behind the smoke screen and distractions. [my emphasis] (2)It requires some effort to focus on substantial policy action and distinguish those from the distractions and cult hyperbole. So, when Trump babbles about people who thought the world would end in 12 years, as he did recently while speaking to the Davos World Economic Forum (3), that’s a pretty obvious distraction.
But the beginning of Trump’s promised mass expulsion of undocumented immigrants has formally begun. So that’s real. Mexican President Claudia Sheinbaum addressed the decree immediately: (4)
She notes, first, that Trump decree of a border emergency is nearly identical to the one he issued at the start of his first administration in 2019. “No es algo nuevo,” she said. (“It’s nothing new.”)
Second, she refers to the new MPP (Migrant Protection Protocols), aka, the “Remain in Mexico” policy. which Trump first imposed in 2018 which were used as the basis of deportations:
The program went into effect in January 2019 and was used to send nearly 70,000 migrants back to Mexico. Citing widespread reports of severe human rights violations and seriously logistical problems caused by the program, the Biden administration suspended, and then terminated, the program after President Biden took office. A “reinstated” Remain in Mexico program returned 7,505 people to Mexico from December 2021 to August 2022 as the result of federal court order which was eventually overturned by the Supreme Court. The government of Mexico has since indicated that it opposes any attempt by the United States to restart a similar program in the future.Scheinbaum notes that the new version is the same thing. The MPP returns people who enter the US and asks for asylum to Mexico while their asylum request is processed. This is a violation of international humanitarian law.
... MPP did not provide due process to migrants. [my emphasis] (5)
Third, she mocks Trump’s dumb new obsession of renaming the Gulf of Mexico to “Gulf of America.” As she politely points out, the US can call it “Gulf of America” if that’s what Trump wants. But for the rest of the world, it will still be the Gulf of Mexico.
Fourth, she addresses Trump’s threat to designate drug cartels in Mexico as “terrorist organizations.” In the forever war against Terror, such a designation is used by the United States to justify unilateral military interventions in other countries without the other country’s approval. She says diplomatically:
Ellos pueden actuar en su territorio, en su marco de actuación y de su Constitución. Nosotros lo que decimos es, la defensa de nuestra soberanía y nuestra independencia. Por eso, siempre dijimos: Nos coordinamos, pero somos un país libre, independiente y soberano, y lo que vamos a buscar es la coordinación.Deutsche Welle reports on Trump’s first week of deportations: (7)
(They [the US] can act in their territory, within their framework of action and their constitution. What we are saying is: the defense of our sovereignty and our independence. That is why we have always said: we will coordinate, but we are a free, independent and sovereign country, and what we are going to seek is coordination.) (6)
The “birthright citizenship” question
One of Trump’s decrees (Executive Orders) attempts to nullify “birthright citizenship.” Elie Mystal analyzes it for The Nation, noting that it comes as part of his distraction approach: “Trump’s activity is, as always, designed to keep people distracted, defensive, and demoralized. He did so much stuff in the opening hours of his junta that the media can’t process it all, and Americans can’t keep up.” (8) He rightly notes that this is "one executive order that attempts to nullify an entire constitutional amendment by fiat,” i.e., the 14th Amendment.
For, Republican xenophobes, the term “birthright citizenship” is meant to invoke the bogeyman image of “anchor babies,” children whose parents came to the United States for the purpose of having a child born on US territory to secure their citizenship and to give the parents some excuse to remain permanently in the US. Every actual evaluation of this phenomenon I’ve ever seen has found this to be a vanishingly small number of people, more often very wealthy people than farmworkers from Mexico. But any loyal Trump cultist can be expected to insist otherwise.
A US district court (a Reagan appointee) immediately issued a temporary restraining order blocking the law’s implementation. (9) The Federal District Judge’s comments are striking:
U.S. District Court Judge John Coughenour’s ruling in a case brought by Washington and three other states is the first in what is sure to be a long legal fight over the order’s constitutionality.As Thomas Wolf explains:
Coughenour called the order “blatantly unconstitutional.”
“I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order,” the judge told the Trump administration’s attorney. “It boggles my mind.”
Coughenour’s decision came after 25 minutes of arguments between attorneys for Washington state and the Department of Justice. (10)
Trump’s executive order is unconstitutional, in direct conflict with the plain language of the 14th Amendment and over a century’s worth of Supreme Court case law. It will be litigated immediately and its prospects of surviving those court fights are slim, even before a Supreme Court stacked with conservative justices. (11)Coughenour even stated after the hearing, “"There are other times in world history where we look back and people of goodwill can say, 'Where were the judges? Where were the lawyers?'" (12)
The 14th Amendment is the place where the Constitution defines the minimum terms for American citizenship. The 14th Amendment definition has also been incorporated into US statutory law and expanded to address particular situations not explicitly covered in the Amendment itself. (13)
Despite the MAGA idea of “birthright citizenship” as meaning “anchor babies,” most American citizens have birthright citizenship. Most of them were born in the United States and have state birth certificates to prove it. Remember the ridiculous, racist pseudo-controversy over Barack Obama’s Hawaiian birth certificate by the “birther movement”? That was all about raising questions about whether Obama was actually born in the United States and therefore really a citizen. “As recently as December 2017, 31% of U.S. adults believed it was possible Obama was born outside the United States.” (14)
The American Immigration Council (AIC) has a helpful feature on “Birthright Citizenship in the United States.” (15) As AIC explains:
Currently, the United States uses a combination of unrestricted birthplace-based citizenship (jus soli) guaranteed by the Fourteenth Amendment to the Constitution, and restricted ancestry-based citizenship (jus sanguinis) granted through the Immigration and Nationality Act (INA), as amended by the Child Citizenship Act of 2000, to determine birthright citizenship.The concept of birthplace citizenship long predated the 14th Amendment and even the original Constitution:
The concept of birthplace-based citizenship has been established for over 400 years, particularly under English common law. Calvin’s Case was a 1608 English legal decision that shaped American understandings of birthplace-based citizenship. The case ruled that a child born in Scotland would be an English subject under common law and entitled to the benefits of English law. This ruling stipulated that people born on sovereign land, no matter the status of their parents, were “natural subjects” of the kingdom.This became part of the English common law tradition, which the first US Congress adopted as valid legal precedent unless it conflicts with later positive law.
How crackpot would it be for the Supreme Court to uphold this Trump order?
The current Federalist Society-dominated, remarkably corrupt Supreme Court has played fast and loose with judicial and legal precedence when it suited the Republican cause. Nowhere more so than in the case of Trump v. United States (2024), which held that the President enjoys wide-ranging immunity from prosecution for anything he or she does as part of their official duties:
Chief Justice John Roberts, writing for the majority, said further proceedings are needed in lower courts to determine what conduct Trump can be prosecuted for. Among the conduct that the court determined to be core presidential powers and therefore subject to immunity are Trump's contacts with Justice Department officials. Trump is also "presumptively immune" from being prosecuted for his contacts with Vice President Mike Pence in the weeks leading up to the Jan. 6, 2021, attack on the Capitol by his supporters, Roberts wrote. (16)This was one of the most radical decisions in the history of the Supreme Court. It’s not actually meaningly based on the Constitution, statutes, or legal precedent. It’s essentially based on the authoritarian notion of the Unilateral Executive, a longtime favorite project of former Vice President Dick Cheney.
But the Supreme Court would have to take a further leap into arbitrary authoritarianism to say the 14th Amendment’s language on citizenship doesn’t mean what it says. The choice would be between different versions of crackpot jurisprudence that had only the most implausible justification and ones that would have been cooked up by Radical Right zealots.
They could, for example, argue that the citizenship clause was very specific to the case of former slaves and that it applied only to former slaves who were alive in 1868 when the 14th Amendment was ratified. And, of course, there are no more of those still living. That would be a loony-tunes ruling.
There’s even a more radical approach that would go back to a theory of hardcore segregationists, who argued after Brown v. Board of Education (1954). (The Supreme Court’s 2013 Shelby v. Holder arguably overturned the key basic argument of the Brown decision.) That argument was that the 14th Amendment was never legitimately ratified. That would be such a leap that even the Roberts Court and their billionaire sugar daddies are unlikely to adopt it. (But who knows?)
To the extent that latter argument had even a tentative connection to reality, it likely has something to do with this:
The Fourteenth Amendment’s ratification generated some controversy for a time, particularly from legal scholars of the South who claimed that the amendment was invalid because of its ratification process. Despite withdrawing their approval of the amendment, two states (Ohio and New Jersey) were counted as ratifiers of the amendment. Aware of this difficulty, Secretary of State Seward waited until Alabama and Georgia had additionally ratified before officially certifying the Fourteenth Amendment on July 28. Southerners still argued that the amendment was invalid, however, because the beaten southern states, then ruled by federal military commissions, were forced to ratify the amendment in order to regain their full legal status.
Since the 1860s, all of the originally dissenting states have approved the Fourteenth Amendment, putting to rest any question of its legal status. (17)
Notes:
(1) Allsop, Jon (2025): Trump, Musk, and the Limits of Attention. Columbia Journalism Review 01/23/2025. <https://www.cjr.org/the_media_today/trump_musk_salute_gesture_attention.php> (Accessed: 2025-25-01).
(2) Rasool, Adnan (2025): Ruling by Distraction. Midwest Political Science Association 04/03/2017. <https://www.mpsanet.org/ruling-by-distraction/> (Accessed: 2025-25-01).
(3) LIVE: Trump speaks at the World Economic Forum in Davos. Associated Press YouTube channel 01/23/2025 (42:50ff in the video). <https://www.youtube.com/live/iOWiuXhuaz4?si=aHxzIdLN2Vh8E7hj> (Accessed: 2025-25-01).
(4) Mexican president responds to Trump on migration and tariffs. La Tercera YouTube channel 01/21/2025. <https://youtu.be/0LO28fk0Z1o?si=RXOaIZrIXAZF2_4R>
(5) The “Migrant Protection Protocols”. American Immigration Council 02/01/2024. <https://www.americanimmigrationcouncil.org/research/migrant-protection-protocols> (Accessed: 2025-25-01).
(6) Siempre voy a defender a México por encima de todo: Presidenta Claudia Sheinbaum. Gobierno de México 21.01.2025. <https://www.gob.mx/presidencia/prensa/siempre-voy-a-defender-a-mexico-por-encima-de-todo-presidenta-claudia-sheinbaum-sobre-ordenes-ejecutivas-firmadas-por-el-presidente-de-eua-donald-trump> (Accessed: 2025-25-01). My translation from Spanish.
(7) Trump begins crackdown on immigration. DW News YouTube channel 01/25/2025. <https://youtu.be/uoQ-0QB3Hic?si=mmjwvCmCg6XBQXtX> (Accessed: 2025-25-01).
(8) Mystal, Elie (2025): A Line-by-Line Breakdown of Trump’s Birthright Citizenship Executive Order. The Nation 01/22/2025. <https://www.thenation.com/article/politics/trump-birthright-citizenship-executive-order/> (Accessed: 2025-25-01).
(9) State of Washington vs. Donald Trump Temporary Restraining Order.
(10) Goldstein-Street, Jake (2025): Judge temporarily blocks Trump’s attempt to end birthright citizenship. Washington State Standard 01/23/2025. <https://washingtonstatestandard.com/2025/01/23/judge-grants-was-request-to-block-trumps-birthright-citizenship-order/> (Accessed: 2025-25-01).
(11) Wolf, Thomas (2025): Presidents Can’t End Birthright Citizenship. Brennan Center 01/23/2025. <https://www.brennancenter.org/our-work/analysis-opinion/presidents-cant-end-birthright-citizenship> (Accessed: 2025-25-01).
(12) Campbell, Katie & RAdil, Amy (2025): KUOW/NPR 01/23/2025. <https://www.kuow.org/stories/seattle-judge-temporarily-blocks-trump-executive-order-on-birthright-citizenship> (Accessed: 2025-25-01).
(13) 8 U.S. Code § 1401 - Nationals and citizens of United States at birth. Cornell Law School. This is the first of several pages and the cite that explains US federal statues on citizenship. <https://www.law.cornell.edu/uscode/text/8/1401> (Accessed: 2025-25-01).
(14) Jardina, Ashley & Traugott, Michael (2019): The Genesis of the Birther Rumor: Partisanship, Racial Attitudes, and Political Knowledge. Journal of Race, Ethnicity, and Politics 4:1. <https://www.cambridge.org/core/journals/journal-of-race-ethnicity-and-politics/article/genesis-of-the-birther-rumor-partisanship-racial-attitudes-and-political-knowledge/8C13EDF7D45A475E97B5D2B35BC8979E> (Accessed: 2025-25-01).
(15) October 2024. https://www.americanimmigrationcouncil.org/topics/birthright-citizenship
(16) Hurley, Lawrence (2024): Supreme Court gives win to Trump, ruling he has immunity for some acts in election interference indictment. NBC News 07/02/2024. <https://www.nbcnews.com/politics/supreme-court/supreme-court-rules-trump-may-immunity-federal-election-inter-rcna149135> (Accessed: 2025-25-01).
(17) The Fourteenth Amendment: history, ratification, and reaction. Jack Miller Center, n/d. <https://www.jackmillercenter.org/our-work/resources/fourteenth-amendment> (Accessed: 2025-25-01).
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