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President Trump’s Recent Executive Orders: Birthright Citizenship and the TikTok Ban

Ted Wells

President Trump has made the news lately with a slew of executive orders issued shortly after his administration took power, following his election to the Presidency. Two that readers may find particularly interesting are (1) the order trying to put limits on birthright citizenship, and (2) the order delaying implementation of the law banning TikTok for 75 days. We discuss these orders here.


The Image of Trump signing the executive orders

What is an Executive Order?

 

An executive order is a directive by the President to the federal government commanding that it do something or not do something. While not explicitly authorized by the United States constitution, Presidents have issued directives that are in substance executive orders from the beginning. For example, in 1789, President Washington directed the heads of the various federal departments “to impress [him] with a full, precise, and distinct general idea of the affairs of the United States” in their fields. A more important historical executive order is the Emancipation Proclamation, issued by President Lincoln on September 22, 1862, which freed the slaves held in what were then the states in the United States that permitted slavery.

 

Executive Orders Can Be Reviewed by Courts and Held Invalid


In the U.S. legal system, there is a strict hierarchy of laws that governs how authority is distributed and limits the power of executive orders. Specifically:


  1. The U.S. Constitution: The highest law of the land, which no law, policy, or executive order can violate.

  2. Federal Laws and Treaties: These are passed or approved by Congress and hold a status above executive orders.

  3. Executive Orders: These have the force of law but must operate within the bounds of the Constitution and federal laws.

  4. Federal Administrative Regulations and Policies: These are subordinate to executive orders and are created by federal agencies under the authority of laws.


Presidents cannot make law. But executive orders have the force of law. This means that executive orders cannot make new law, but instead, must be based on some other law. Typically this means the United States Constitution, or a law passed by Congress. Executive orders, like other laws, are subject to judicial review by the courts of the United States. They can be and have been held to be contrary to the United States Constitution.


For example, President Truman tried to use an executive order to nationalize certain steel plants during the Korean War in order to help the war effort, but the United States Supreme Court stopped this by invalidating the order as contrary to the Constitution.

 

Birthright Citizenship and TikTok

 

Here in 2025, President Trump has issued many executive orders of his own. Two of them are his order trying to put limits on birthright citizenship, and his order delaying the implementation of the TikTok ban passed by Congress and recently upheld by the United States Supreme Court.

 

Limits on Birthright Citizenship: A Nonstarter

 

President Trump’s executive order seeks to deny birthright citizenship to certain groups:


  1. Babies born in the U.S. to mothers unlawfully present, with fathers who are neither citizens nor lawful permanent residents.

  2. Babies born to mothers lawfully present on temporary visas (e.g., student, work, or tourist), with fathers who are not citizens or lawful permanent residents.

 

This order is a nonstarter. It is simply unconstitutional, in that it conflicts with the 14th Amendment of the United States constitution, which provides in part as follows:

 

"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."

 

The straightforward meaning of this is that anyone born in the United States is a citizen of the United States. There are no limitations here.

 

Therefore, a federal district court in Seattle, Washington, has recently blocked the implementation of this unconstitutional order. The legality of the order will be litigated in the coming months, but it is likely to eventually be held to be unconstitutional.

 

TikTok Ban Delay Probably OK

 

Congress recently passed a ban forcing ByteDance to either sell TikTok, which it will not do, or shut down operations in the United States. The Supreme Court recently ruled that this ban was lawful. Accordingly, the law was set to take effect on January 19, 2025. TikTok briefly shut down operations ahead of this deadline to comply with the law.

 

But President Trump recently issued an executive order delaying the ban for 75 days. This is likely OK. Article 2, section 1 of the United States constitution vests the “executive power” in the President. Article 2, section 3 of the United States constitution provides that the President “shall take cares that the laws be faithfully executed.” Combining these sections, it is likely that a court would conclude that a brief period of delay in implementing the TikTok ban is legally permissible. This view is all the stronger considering that the law itself had a nine-month delay of implementation written into it in the first place.

 

Therefore, the executive order delaying the implementation of the TikTok ban is probably lawful, and will likely be effective. What remains to be seen is what TikTok will do in response to the law—sell, shut down, or make a deal? Only time will tell.


For more detailed information or to understand how Trump’s new policies may impact your business, please contact our Partner and Head of Litigation, Ted Wells, at contact@consultils.com.


Disclaimer: The materials provided on this website are for general informational purposes only and do not, and are not intended to, constitute legal advice. You should not act or refrain from acting based on any information provided here. Please consult with your own legal counsel regarding your specific situation and legal questions.

 
Image of Ted Wells, Esq.

Ted Wells is an accomplished and talented litigator with a proven record of success. Ted has routinely secured judgments in the millions, with a number of published opinions in his career.


Ted represents employers and businesses before state and federal courts, arbitral tribunals, and administrative agencies in a wide variety of employment and business litigation matters, including contract, business tort, fraud, consumer protection, discrimination, harassment, retaliation, wrongful discharge, and wage and hour lawsuits.


Email: contact@consultils.com | Phone: 626-344-8949

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