“Then Guard Your Rights, Americans! Nor Stoop to Lawless Sway”
Citizens Protest the Lawless and Arbitrary Actions of the Trump Administration Across the Region, Commonwealth, and the Nation
[Readers, this is more a pamphlet, or a paper, than anything else — it is quite long, perhaps excessively so, but I did think it important — indeed, I felt compelled by conscience —to state, in a scholarly way, the present situation in this country. Because it is so long, you may wish to open it in a separate Internet browser, rather than read it as an email. You can also find it on the front page at plymouthcountyobserver.substack.com. I did wish to get this out sooner, but had the flu for most of the past two weeks (I’m on the mend). Finally, I fully recognize that some of you may disagree with this essay, and I certainly respect your right to do so. I also note that I am a historian by training, not a lawyer. I nevertheless believe that the arguments below are sound, and I offer them for your consideration. Thank you for reading and subscribing. — Ben Cronin.]
Abstract/Quick Summary — Groups gathered to protest the lawless and arbitrary actions of the Trump Administration, both locally and nationally. The actions of the Administration are contrary to the Constitution — the Legislature, not the Executive, makes the laws. Precedent supports this extending back to the 17th century. This is a fundamental axiom of Anglo-American constitutional thought. The weight of precedent is entirely against a number of actions by the Trump Administration.
I.
“Then guard your rights, Americans! nor stoop to lawless Sway,
Oppose, oppose, oppose, oppose, my brave AMERICA.”
— “The New Massachusetts Liberty Song,” April, 17701
(PLYMOUTH and SCITUATE) — Hundreds of people last week exercised their constitutionally-guaranteed freedom of assembly, protesting the recent and ongoing lawlessness and arbitrary government of the Trump Administration at demonstrations in Plymouth and Scituate, and across the nation.
(The President’s Day Protest at Plymouth Rock. Photos by Karen Wong.)
The President’s Day Rally at Plymouth Rock was coordinated by the Halifax Democratic Town Committee, in cooperation with a number of organizations and individuals locally. Speakers included Halifax Democratic Town Committee Co-Chair Ellen Snoeyenbos; 12th Plymouth District Rep. Kathy LaNatra (D-Kingston); 1st Plymouth District Rep. Michelle Badger (D-Plymouth); Member of the Whitman Board of Selectmen Justin Evans; Massachusetts State Auditor Diana DiZoglio (D); and Jessica Laverty, of the Rockland Democratic Town Committee. According to Ms. Snoeyenbos, police estimated the crowd size at approximately 500 people.
(The protesters gathered by the Rock. Photos by Karen Wong.)
“Our purpose here today is to gain strength from each other. Look around. Take stock. Take a measure of how much we have built together,” said Ms. Snoeyenbos.
“We have built safety nets (‘do we have any signs that show these? If so, raise them and turn them for all to see’), state-of-the-art research facilities to protect our health and sustain life on this planet (signs?), transportation systems that move people safely (signs?), environmental and climate/weather safety (signs?), public news sources like PBS and NPR, National Parks in all fifty states, schools libraries and hospitals that serve all (signs?), arts organizations (signs?) that reflect the creativity of the American people, and so much more,” she said.
“We built it! Don’t let them take it away!” she urged the crowd.
“‘NOT ON OUR WATCH’ will we allow the precious institutions to be thrown away!!! Much may be asked of us in the coming days. Be ready to respond in order to protect our country [from] thieves [who] wish to steal it from us,” said Ms. Snoeyenbos.
(The Plymouth Rock Protest, Feb. 17th, 2025. Photo by Susan DeMaria.)
She closed with a quote from poet Amanda Gorman, who recited her poem “The Hill We Climb” at President Joe Biden’s inauguration in 2021:
“So let us leave behind a country better than the one we were left…
…the new dawn blooms as we free it, for there is always light if only we’re brave enough to see it, if only we’re brave enough to be it.”
To the north, in Scituate, a group, organized by Joan and Dan Lowery and San Weafer, gathered at Scituate Town Hall, on the Chief Justice Cushing Highway (Rt. 3A), in protest at the lawless and arbitrary actions of the Administration in Washington.
(Protesters in Scituate on President’s Day. Photo Credit — Kevin Weafer.)
It is one of history’s happy coincidences that the demonstration in Scituate took place on the highway named for one of that town’s most notable sons, William Cushing. Judge Cushing served as the Chief Justice of the Massachusetts Supreme Judicial Court, and later Associate Justice of the United States Supreme Court. Significantly, Justice Cushing was the presiding judge in Commonwealth v. Jennison (1783), one of the key judicial decisions which ended slavery in the Revolutionary Commonwealth of Massachusetts. His instructions to the jury in that case enunciate, with exceptional clarity, the principles which unite the protesters of 2025 and the revolutionaries of the latter 18th century:
Slavery, said Justice Cushing, “has been a usage [in Massachusetts] — a usage which took its origin from the practice of some of the European nations, and the regulations of British government respecting the then Colonies, for the benefit of trade and wealth. But whatever sentiments have formerly prevailed in this particular or slid in upon us by the example of others, a different idea has taken place with the people of America, more favorable to the natural rights of mankind, and to that natural, innate desire of Liberty, with which Heaven (without regard to color, complexion, or shape of noses-features) has inspired all the human race. And upon this ground our Constitution of Government, by which the people of this Commonwealth have solemnly bound themselves, sets out with declaring that all men are born free and equal — and that every subject is entitled to liberty, and to have it guarded by the laws, as well as life and property — and in short is totally repugnant to the idea of being born slaves. This being the case, I think the idea of slavery is inconsistent with our own conduct and Constitution….”2
Protests were widespread on President’s Day — there were protests in Falmouth, on Boston Common, from Augusta, Maine, to Fairbanks, Alaska, in New York, Chicago, Los Angeles, in Washington, D.C., and across the nation.
In addition, the pace continued, with a rally against cuts and layoffs affecting veterans led by U.S. Rep. Stephen Lynch (D-South Boston) at the West Roxbury Veterans Affairs Medical Center on February 21st, 2025. Organizers have called for a national economic boycott for tomorrow, February 28th, while locally, the Marshfield Democratic Town Committee is holding a rally against Elon Musk at the Dandelion Park, on Ocean Street next to the CVS in Marshfield.
II. Republicans Acknowledge Constitutional Problems; Polling; Impact on Cape Cod
It is also important to note that these objections, though made most loudly by members of the Democratic (and independent Left) opposition, have also been expressed, mostly sotto voce, by members of the Republican Party. Sen. Susan Collins (R-Maine) went so far as to state that the obstructing of already-appropriated funds was unconstitutional, in a February 19th interview with Politico: “I think it's pretty clear that this violates Article One of the Constitution," said Sen. Collins.3 Senator Thom Tillis (R-North Carolina) admitted that Elon Musk “may be wading into areas that will be congressional authority, period,” in a February 4th interview with Talking Points Memo.4 Sen. Rand Paul likewise acknowledged that the actions of DOGE are “not real until we vote on it.”5
Voters have taken the opportunity of expressing their objections directly to members of Congress at town hall meetings across the country. In the swing state of Wisconsin, for example, in the Town of Algoma, next to Oshkosh, U.S. Congressman Glenn Grothman (R-Glenbeulah) was confronted by angry members of the public, as Wisconsin Public Radio reported:
“Another woman asked the congressman how he feels about the power of Elon Musk, the billionaire heading Trump’s cost-cutting Department of Government Efficiency.
‘He does not have the ability to do any actions on his own,’ Grothman answered.
‘We did not elect him,’ a man shouted.
As the town hall reached its scheduled end, more constituents shouted questions about Musk’s access to taxpayer data and yelled ‘don’t lie to us’ at Grothman.”6
Polling also provides evidence of the dissatisfaction of voters with the lawless conduct of DOGE. Axios reports the results of several recent polls, including a February 13th to 18th Washington Post-Ipsos poll which found that 34% of respondents approved of Musk’s conduct at DOGE, while 49% disapproved, and 14% weren’t sure. A Quinnipiac poll taken between February 13th to 17th likewise found that 55% of those polled thought Musk had too much power in terms of making national decisions; 36% said he has the right amount.7 A YouGov/Economist poll found that 61% of respondents reported a favorable view of the Environmental Protection Agency (EPA) — one of the federal agencies targeted by DOGE — whereas just 42% expressed a favorable view of both DOGE and Musk. 52% expressed an unfavorable view of Musk.8 In the Washington Post/Ipsos poll, 57% agreed that Trump “has exceeded his authority since taking office,” USA Today said, citing original reporting on the polling from The Washington Post.9
The lawless and arbitrary conduct of the Administration has had consequences locally. According to a February 9th statement posted on the Association to Preserve Cape Cod’s (APCC) Facebook page by its Executive Director Andrew Gottlieb, six environmental projects across Cape Cod risked, at best, needless delay, and, at worst, the projects may never happen — or their costs may be displaced onto the Towns.
“Despite widespread news reports that would lead a reasonable person to conclude that frozen federal funds were flowing again, that is not the case. As of this writing, APCC remains unable to access the federal payment system to submit invoices for work legally authorized to be completed under the terms of binding contracts,” wrote Mr. Gottlieb.
“Some people think that as the grant recipient, APCC enriches itself, so who cares? That is not how these grants work. APCC serves as the pass-through with roughly 95 percent of the $17.5 million in contracted grants flowing through APCC into the direct implementation of the projects. The remainder offsets a portion, but not all, of APCC’s time managing the projects and ensuring that all these public funds are spent lawfully, efficiently, and effectively. In this current scenario, the big losers are the people who appreciate and enjoy a cleaner environment, the environment itself, and the American workers whose future income and ability to contribute to the economic vibrancy of the region has been thrown into question,” he continued.
“You might ask what the big deal is here. There are many reasons why you should care about this unilateral breach of contract. Six heavily degraded water resources systems in four towns across the Cape are now in jeopardy. At a minimum, these projects will be delayed, and the result will be the continued burden on Cape residents and the environment that comes from poor water quality and degraded habitat,” said Mr. Gottlieb.
There was also a larger issue, he argued — the sanctity of contracts (pacta sunt servanda — agreements must be kept).
“Lastly, there is a larger question at hand. What does it mean to how business is done in America if contractual obligations have no meaning? This is a slippery slope here and the implications to basic tenets of business are profound. How does one move forward with anything if one’s contractual commitment is simply an unenforceable group of words?”
“Where we go from here is anyone’s guess,” said Mr. Gottlieb.10
[UPDATE, 2/28/25: WBUR’s Barbara Moran and Vivian La reported yesterday that the APCC can once more access federal funds, but that the organization is still dealing with the enormous uncertainty created by the U.S. Government’s inability to keep its word under this Administration:
"Executive Director Andrew Gottlieb said the staff is tiptoeing forward with small expenses, but has delayed construction on the first wetland restoration project. He said they'll wait until Congress finalizes the federal budget. Beyond that, they plan to break up contracts into small pieces to manage the risk, and ask for frequent reimbursements in case the money freezes again.
" I certainly don't expect any extension," Gottlieb said.”11]
III. The Legislative Branch Makes the Laws; the Executive Branch Carries Them Out
The present controversy turns on one of the basic principles of Anglo-American constitutional thought: the Executive Branch cannot make law. This is the exclusive province of the Legislature (“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” U.S. Constitution, Art. I, Sec. 1.) Nor can the Executive spend — or refuse to spend — money which has been lawfully appropriated by the Legislative Branch. It is the Legislature, not the Executive, which has the power of the purse. In Britain, Parliament is the Legislative Branch, and the Crown, through its ministers, is the Executive. In America, the Congress of the United States is the Legislative Branch, and the President is the Executive Branch. Along with the Judiciary, they form the three co-equal branches of the government.
Let’s look at the United States Agency for International Aid (USAID), one of the early targets of the President’s favorite courtier, chief financial patron, and the world’s richest man, Elon Musk, and his Department of Government Efficiency [sic] (DOGE).12 USAID was first created through Executive Order by President Kennedy in 1961; however, critically, in 1998, its existence was given statutory basis by the passage, by Congress, into law of 22 U.S. Code 6563 (“there is within the Executive branch of Government the United States Agency for International Development”). An Act of Congress can only be repealed by the Congress; the President simply lacks any constitutional authority to repeal a law. The Congress makes or repeals laws; the President, by contrast, “shall take Care that the Laws be faithfully executed[.]” (U.S. Const., Art. II, Sec. 3)
Strictly speaking, the substantive content of the changes so attempted by the Executive Branch via Executive Order is irrelevant. Cancelling the purchase of food aid, and thereby denying hungry people abroad food while hurting American farmers, is, in my view, bad; but an Executive could attempt something by Executive Order that is, in my view, good — establishing Medicare for All, say — and it would still be illegal, because “all Legislative Powers” are “vested in” the “Congress of the United States.” (U.S. Const., Art. I, Sec. 1). (Nor should we take at face value the claims made by DOGE et al. regarding savings of government money, since they appear unable to distinguish between “billion” and “million.”13)
The national revenue in particular is the province of the Legislative branch. “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” (U.S. Const., Art. I, Sec. VII, Clause 1).
With the unified control of the Republican Party over both the Legislative and Executive branches, the proper constitutional avenue to dismantle USAID — of passing a statute repealing 22 U.S. Code 6563 — is open. There is nothing preventing the Administration, and for that matter the Congress, from following the Constitution. They are choosing not to.
IV. 17th Century Precedents
It is important to look for relevant precedents here. To find one that is apt, we have to look back quite a distance, to the long crisis of the 17th century, when the Parliament of England successfully guarded the rights of the people and the nation from the attempts by the Crown to rule arbitrarily and absolutely, without recourse to law or the legislature. This is relevant because in those days, Massachusetts, like other colonies, was under the jurisdiction of the Kingdom of England, and subject to the laws of England, and the legal settlement of that crisis came into our own American legal system (it’s also notable that, when news of the Glorious Revolution reached Boston in early 1689, James II’s despotic governor, Sir Edmund Andros, was overthrown and imprisoned, eventually being sent back to England).
A significant statement of the rights of Parliament and the people can be found in the 1628 Petition of Right, drafted by famed English jurist Sir Edward Coke (emphasis added).
“They do therefore humbly pray your most excellent Majesty [Charles I], that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of parliament;” that this right of the legislature over public moneys does not give the executive the right to refuse to spend lawfully appropriated funds is affirmed by the Congressional Budget and Impoundment Control Act of 1974 (88 Stat. 297), as described by John Roberts in a 1985 memorandum when he served as a lawyer in the Reagan Administration.14 Staying, however, with the 1628 Petition of Right, we find the following statement, binding executive power with the law: “in the things aforesaid all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honor of your Majesty, and the prosperity of this kingdom.”15 (emphasis added)
(The Petition of Right, 1628. Via Wikimedia Commons.)
The years following the Petition of Right were marked by Charles I’s determination to rule without Parliament, the period of so-called Personal Rule. These controversies eventually erupted in a bloody civil war (1642-1651), stretching across the three Stuart Kingdoms of England, Scotland, and Ireland (Wales was legally part of England at this point). Charles I fought, lost to, and was eventually executed by Parliament (1649). A few years later, Oliver Cromwell subverted the Parliamentary revolutionaries and ruled as a military dictator (“Lord Protector”; 1653-58)). A few years subsequent to that, the Stuart monarchy was restored (1660), but the essential constitutional issues remained unresolved.
The 1641 Massachusetts Body of Liberties came in the wake of the Petition of Right (the Puritans and Parliament were one side of the Civil War, known as the Roundheads; Anglican and occasionally Roman Catholic Royalists, known as the Cavaliers, fought for the Crown; Massachusetts and Virginia sent people back to England to fight on the respective Roundhead/Cavalier sides of the Civil War); it was written on the eve of the English Civil War. It likewise establishes the exclusive power of the legislature over the appropriation of public funds:
“The Generall or publique Treasure or any parte thereof shall never be exspended but by the appointment of a Generall Court, nor any Shire [County] Treasure, but by the appointment of the freemen thereof, nor any Towne Treasurie but by freemen of that Towneship.”16
It was only with the Glorious Revolution of 1688 that the supremacy of Parliament, and the exclusive power of the Legislature to make and repeal laws, was finally and firmly established. It is worth looking at some of the specific language of the British Bill of Rights of 1689, the basis and model for the U.S. Bill of Rights, regarding our current situation:
The document charges James II with attempting to “subvert and extirpate” “the laws and liberties of this kingdom[.]” How did James II do this?
“By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament[.]”
And:
“By levying money for and to the use of the Crown by pretence of prerogative for other time and in other manner than the same was granted by Parliament[.]”17
These grievances are directly relevant to our situation. If a department of the Government was established by statute, then only the Legislature can undo it — by statute. The Executive cannot “assum[e] and exercis[e] a power of dispensing with and suspending of laws and the execution of laws without consent of” Congress. If moneys were already appropriated by the Congress, then “levying money for and to the use of the” President “by pretence of prerogative for other time and in other manner than the same was granted by” Congress is not just illegal, it is flatly contrary to centuries of established precedent.
Indeed, these precedents were well known to the Founding generation.18
V. Arguments from The Federalist Papers
We can better understand the thinking of the framers of the federal constitution by examining The Federalist Papers, the essays published pseudonymously in New York newspapers in favor of the Constitution by James Madison, Alexander Hamilton, and John Jay.
In Federalist No. 48, Madison is clear that “the legislative department [i.e., branch] alone has access to the pockets of the people”.19 In Federalist No. 51, Madison asks: “TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments [i.e., branches], as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”20 (emphasis added)
Notably, the plaintiffs in New Mexico et al. v. Musk make reference to Federalist No. 76, which deals with the Presidential power of appointment. Here is Hamilton in that essay:
“To what purpose then require the co-operation of the Senate [in appointments - Cronin]? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.”21
And:
“It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”22
Taken together, the evidence from The Federalist Papers is clear — the government is divided into co-equal branches, of which the legislative branch has the power of the purse, and the executive’s appointment power is subject to the confirmation of the Senate, in part to act as a check upon potential favoritism by the President.
VI. The 20th Century: Youngstown Co. v. Sawyer
One of the problems we face at this moment is that the scale of the Trump Administration’s assault on the established constitutional order is so broad, and with the weight of precedent against the Administration so vast, it is difficult to focus on just one relevant decision. Nevertheless, I do want to take a closer look at one of the 20th century’s most significant rulings restraining — and stating the nature of — Presidential power, Youngstown Sheet Tube Co. et al. v. Sawyer (1952).
That case arose out of a threatened nationwide steelworkers’ strike in April, 1952, at the height of the Korean War. Steel, of course, was and is a key war industry, critical for the production of armaments. President Harry S. Truman issued an Executive Order directing the Secretary of Commerce to seize the nation’s steel mills in order to keep them open for war production. In his Executive Order, Truman relied on his authority as Commander in Chief of the Armed Forces. In Youngstown Co. v. Sawyer., the US Supreme Court ruled that he had exceeded his power, since the President does not make the law. Here is Justice Hugo Black writing for the Court:
“In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that ‘All legislative Powers herein granted shall be vested in a Congress of the United States ....’ After granting many powers to the Congress, Article I goes on to provide that Congress may ‘make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.’"23
Justice Black concluded:
“The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.”24
Justice Felix Frankfurter concurred with Justice Black:
“A constitutional democracy like ours is perhaps the most difficult of man's social arrangements to manage successfully. Our scheme of society is more dependent than any other form of government on knowledge and wisdom and self-discipline for the achievement of its aims. For our democracy implies the reign of reason on the most extensive scale. The Founders of this Nation were not imbued with the modern cynicism that the only thing that history teaches is that it teaches nothing. They acted on the conviction that the experience of man sheds a good deal of light on his nature. It sheds a good deal of light not merely on the need for effective power, if a society is to be at once cohesive and civilized, but also on the need for limitations on the power of governors over the governed,” wrote Justice Frankfurter.
He continued:
"To that end they rested the structure of our central government on the system of checks and balances. For them the doctrine of separation of powers was not mere theory; it was a felt necessity. Not so long ago it was fashionable to find our system of checks and balances obstructive to effective government. It was easy to ridicule that system as outmoded — too easy. The experience through which the world has passed in our own day has made vivid the realization that the Framers of our Constitution were not inexperienced doctrinaires. These long-headed statesmen had no illusion that our people enjoyed biological or psychological or sociological immunities from the hazards of concentrated power….”25
VII. 2025: N.H. Indonesian Community Support v. Trump
Youngstown Co. v. Sawyer provides a clear check on Presidential power, and indeed, is cited in five recent cases involving the Trump Administration (Pflag, Inc., v. Trump, Washington v. Trump, N.H. Indonesian Cmty. Support v. Trump, State of New York v. Trump, Casa Inc. v. Trump) The danger to the Constitution of the unaccountable accumulation of power in the Executive branch under President Trump and his favorite/courtier/financial patron, Elon Musk, is one of the common themes of the many legal actions which have been filed in the Administration’s first weeks. We will take a brief look at N.H. Indonesian Community Support, et al. v. Donald J. Trump, et al., which was heard in the U.S. District Court for the District of New Hampshire, both because it is a New England case, and because it also involves one of the gravest of the Trump Administration’s attempts against the Constitution, the attempt to undo birthright citizenship — which is not only guaranteed by the Fourteenth Amendment, but also inheres in the Common Law extending back at least to Calvin’s Case (1608), — via Executive Order. See also Inglis v. Trustees of Sailor's Snug Harbour, 28 U.S. 99, 164 (1830) (“Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.”)
But again, just as with statutory law, so with the organic law — the Constitution provides a means of amendment (see U.S. Const., Art. V). It is emphatically not by Executive Order.
In N.H. Indonesian Community Support v. Trump, Judge Joseph N. LaPlante issued an Order granting the plaintiffs’ request for a preliminary injunction on February 11th, 2025. In the decision, Judge LaPlante describes the Executive Order:
“On January 20th, 2025, the President issued Executive Order No. 14160, titled ‘Protecting the Meaning and Value of American Citizenship.’ It provides that the Fourteenth Amendment of the Constitution ‘has never been interpreted to extend citizenship universally to everyone born within the United States’ and that it ‘has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof,”’” wrote Judge LaPlante.26
He continued:
“It then orders that ‘no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons’ in two circumstances:
‘(1) when that person's mother was unlawfully present in the United States and the person's father was not a United States citizen or lawful permanent resident at the time of said person's birth, or (2) when that person's mother's presence in the United States was lawful but temporary, and the person's father was not a United States citizen or lawful permanent resident at the time of said person's birth.’”27
The plaintiffs (Indonesian Community Support) argue that the Executive Order violates both the 14th Amendment of the U.S. Constitution and the Immigration and Naturalization Act, as well as the Administrative Procedure Act. The defendants (Donald Trump et al.), for their part argue that there is no cause of action, and that moreover, the plaintiffs have misinterpreted a broad and longstanding corpus of Supreme Court precedent on the issue of birthright citizenship. “[T]he defendants contend that illegal immigration to the United States justifies invoking the exception to birthright citizenship for “children born of alien enemies in hostile occupation.” See United States v. Wong Kim Ark, 169 U.S. 649, 682 (1898).”28
Judge LaPlante found these arguments from the defendants unpersuasive.
“[T]he plaintiffs have a cause of action to seek injunctive relief to redress certain governmental actions that contravene the Constitution or a federal statute. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582 (1952) (‘decid[ing] whether the President was acting within his constitutional power when he issued an executive order directing the Secretary of Commerce to take possession of and operate most of the Nation's steel mills’); Chamber of Com. of U.S. v. Reich, 74 F.3d 1322, 1332 (D.C. Cir. 1996) (adjudicating a ‘claim that [an] Executive Order is in conflict with the [National Labor Relations Act]’). ‘The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.’ Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015),” wrote Judge LaPlante.29
To qualify for injunctive relief, he noted, the moving party must demonstrate four elements: 1) likelihood of success on the merits; 2) likelihood of irreparable harm if injunctive relief is not granted; 3) the balance of relevant equities (in terms of relative hardship to each party); and 4) the effect of granting injunctive relief on the public interest.
“The plaintiffs have demonstrated a likelihood of success on the merits of their constitutional claim and at least one statutory claim. The Fourteenth Amendment and § 1401 [of the Immigration and Naturalization Act] both state that ‘[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’ U.S. Const. amend. XIV, § 1; 8 U.S.C. § 1401,” wrote Judge LaPlante.30
He found that “the Executive Order contradicts the text of the Fourteenth Amendment and the century-old untouched precedent that interprets it. The Supreme Court in United States v. Wong Kim Ark enumerated specific exceptions to the constitutional grant of birthright citizenship: ‘children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.’ Wong Kim Ark, 169 U.S. at 693. The categories of people affected by the Executive Order do not fit into those exceptions.”31
There was no reason to minutely explore the legislative history of the Fourteenth Amendment, said the Court, an argumentative move often seen in various copied-and-pasted, though typically unattributed, social media posts on this subject, as well as in the Government’s argument; there was simply no ambiguity on the issue. “There is no reason to delve into the amendment's enactment history (or as explained below, § 1401's legislative history) or employ other tools of interpretation to discern that ‘subject to the jurisdiction thereof’ refers to all babies born on U.S. soil, aside from the enumerated exceptions because the amendment and statute do so unambiguously.” (Italics in original). Nor would children born after the Order was to take effect (February 19th, 2025) constitute “enemies within and during a hostile occupation”, Judge LaPlante ruled.32
In terms of irreparable harm, Judge LaPlante easily found its likelihood for the plaintiffs in the absence of injunctive relief.
“The court has little difficulty concluding that the denial of citizenship status to newborns, even temporarily, constitutes irreparable harm. The denial of citizenship to the plaintiffs' members' children would render the children either undocumented noncitizens or stateless entirely. Their families would have more trouble obtaining early-life benefits especially critical for newborns, such as healthcare and food assistance. The children would risk deportation to countries they have never visited. Although the defendants argue that the harm would be hypothetical and speculative, the court disagrees.”33
In terms of the balance of equities, the Court found that “imposition of the Executive Order would impact the plaintiffs and similarly situated individuals and families in numerous ways, some of which-in the context of balancing equities and the public interest-are unnecessarily destabilizing and disruptive.”34 Meanwhile, ‘The defendants have “no interest in enforcing an unconstitutional law, [and] the public interest is harmed by the enforcement of laws repugnant to the United States Constitution.’ Tirrell v. Edelblut, No. 24-CV-251-LM-TSM, 2024 WL 3898544, at *6 (D.N.H. Aug. 22, 2024) (McCafferty, C.J.)”35
“The plaintiffs advocate for the most natural reading of the phrase ‘subject to the jurisdiction thereof” employed by the Fourteenth Amendment and § 1401. ‘[I]t's a fundamental canon of statutory construction that words generally should be interpreted as taking their ordinary ... meaning ... at the time Congress enacted the statute.’ New Prime Inc. v. Oliveira, 586 U.S. 105, 113 (2019) (citations and quotations omitted). The amendment and statute are unambiguous, and the plaintiffs argue for the ordinary meaning of the phrase as understood by reasonable American English speakers at the time of enactment.”36
Finally, the Court considered the final test for injunctive relief, the public interest.
“The defendants have ‘no interest in enforcing an unconstitutional law, [and] the public interest is harmed by the enforcement of laws repugnant to the United States Constitution.’ Tirrell v. Edelblut, No. 24-CV-251-LM-TSM, 2024 WL 3898544, at *6 (D.N.H. Aug. 22, 2024) (McCafferty, C.J.) (quotations omitted) (quoting Siembra FincaCarmen, LLC v. Sec'y of Dep't of Agric. of P.R., 437 F.Supp.3d 119, 137 (D.P.R. 2020)).
‘When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.’ Youngstown, 343 U.S. at 637-38 (Jackson, J., concurring). The ultimate lawfulness of the Executive Order will surely be determined by the Supreme Court. This is as it should be. As the Executive Order appears to this court to violate both constitutional and statutory law, the defendants have no interest in executing it during the resolution of the litigation.”37
(The New Massachusetts Liberty Song, 1770; via the Library of Congress).
VIII. The Whig Spirit of Lawful Liberty vs. Monarchical Absolutism
“Tyranny, my Lords, is detestable in every shape; but in none is it so formidable as where it is assumed and exercised by a number of tyrants. But, my Lords, this is not the fact, this is not the constitution; we have a law of Parliament, we have a code in which every honest man may find it. We have Magna Charta, we have the Statute-book, and we have the Bill of Rights...A breach has been made in the constitution—the battlements are dismantled—the citadel is open to the first invader—the walls totter—the place is no longer tenable.—What then remains for us but to stand foremost in the breach, to repair it, or to perish in it?...”
— William Pitt the Elder, Speech in the House of Lords on John Wilkes, Jan. 9th, 1770.38
“Monarchical sovereignty, the enemy of mankind, and the source of misery, is abolished; and the sovereignty itself is restored to its natural and original place, the Nation.”
— Thomas Paine, The Rights of Man.39
The President, contrary to his pronouncements on social media, is not a King. Nor, as he claimed in an exchange with Gov. Janet Mills of Maine, is he the law, a view better-suited to the Absolutism of King Louis XIV of France (see Louis’s statement — “L’Etat, c’est moi” — “The State, is me”) than to a free republic. Rather, the President is the chief magistrate, who is charged by the Constitution with seeing that the laws are “faithfully executed.” (U.S. Const., Art. II, Sec. 3) Those laws are made by the legislative branch, the Congress of the United States (U.S. Const., Art. I, Sec. 1.) This reflects the English experience, culminating in the long 17th century crisis, and the ultimate triumph of 1688-89, when the supremacy of Parliament, and the exclusive competence of the legislative branch to make law, was firmly and finally established.
To show just how absurd the idea of the Executive branch as the source of law, we may reason by analogy with our several Towns. The Select Board of a Town, its executive branch, does not have the power to undo bylaws which were duly passed by a vote of the Town Meeting, the legislative branch. Imagine the election, in some hypothetical future, of a Select Board in the Town of Duxbury that is adamantly anti-agriculture. Three of the five members of this hypothetical board take particular exception to the noise and smells incidental to agriculture, and therefore vote for the repeal, as the Select Board, of Chapter 11 of the Town of Duxbury General By-laws, the right to farm by-law. What would the effect of such a hypothetical Select Board vote be?
The effect would be — nothing. The Select Board is the executive, and cannot make laws. Only the Town Meeting — the legislative branch — can make laws, and the Right to Farm bylaw was approved by the Duxbury Annual Town Meeting in March, 2008.40 Only the Town Meeting can repeal a by-law passed by the Town Meeting. Any attempt by a Select Board to repeal a bylaw or other vote of the Town Meeting would be entirely nugatory. So it is with the national Executive and Legislative branches — the latter makes the law, the former carries it out.
As Sen. Collins’ statement quote above demonstrates, this is not a partisan matter. It is one that should gravely trouble anyone with respect for the Anglo-American constitutional tradition. It is contrary to our best traditions, the wisdom of our forebears, and “the better angels of our nature.”
After the 1787 Constitutional Convention, Dr. Franklin famously said that we have “a republic — if you can keep it.” That is the question before us. It is a weighty and terrible one, but one we must confront. Just as the President is not a king, nor is a roving, unelected plutocrat-favorite with pretended plenary power over the federal government anywhere contemplated by the Constitution. What the Constitution does establish is a republic, with powers separated into three co-equal branches of government — the legislative, which makes the laws; the executive, which enforces them, and the judicial, which interprets them.
What we do now will set the course for the next century. In our time, as in ages past, the protection and the preservation of the common law and the Constitution is the affirmative duty of all those who believe in liberty under the law, and in republican government.
“The new Massachusetts liberty song To the tune of the British grenadier.” April. 1770. Pdf. https://www.loc.gov/item/2020776925/.
Commonwealth v. Jennison (Massachusetts, Unreported, 1783). https://en.wikipedia.org/wiki/Commonwealth_v._Jennison
Catherine Tully-McManus, “‘You would see lawsuits’: Susan Collins fires new warning shot at Trump on spending”, Politico, Feb. 19th, 2025. https://www.politico.com/live-updates/2025/02/19/congress/susan-collins-elon-musk-warning-00204873.
Kate Riga, “Senate Republicans Shrug As Unelected Musk Seizes Their Power,” Talking Points Memo, Feb. 4th, 2025. https://talkingpointsmemo.com/news/senate-republicans-musk-trump.
Tully-McManus, “‘You would see lawsuits’”, Politico, 2/19/25.
Nick Rommel, “US Rep. Glenn Grothman faces hostile crowd at Oshkosh town hall meeting,” Wisconsin Public Radio, Feb. 21st, 2025. https://www.wpr.org/news/glenn-grothman-faces-hostile-crowd-at-oshkosh-town-hall.
Avery Lotz, “Musk and DOGE underwater with some voters in recent polling,” Axios, Feb. 23rd, 2025. https://www.axios.com/2025/02/23/musk-doge-disapproval-ratings-recent-polling.
Irina Irinova, “Americans now view Elon Musk and DOGE far less favorably than the programs DOGE is slashing, poll shows,” Fortune, Feb. 21, 2025. https://www.yahoo.com/news/doge-efficiency-czar-elon-musk-063300690.html)
Kinsey Crowley, “Do Americans approve of President Trump? Here's what polls say a month into office”, USA Today, Feb. 21st, 2025. https://www.msn.com/en-us/news/politics/do-americans-approve-of-president-trump-here-s-what-polls-say-a-month-into-office/ar-AA1zxQwa?ocid=BingNewsSerp.
https://www.facebook.com/APCC.org/posts/pfbid02QiajCYyBihTMsZdL76zNk9nZMTB9mF3RewMdV3dDGXj7mxkSQWgKjB6QsPb5zcB8l.
Barbara Moran and Vivian La, “For Mass. environmental groups, federal funding is now 'a gamble'“, WBUR, Feb. 27th, 2025. https://www.wbur.org/news/2025/02/27/massachusetts-federal-funding-freeze-environment.
On January 20th, 2025, President Trump issued an Executive Order entitled Establishing and Implementing The President’s “Department of Government Efficiency” https://www.whitehouse.gov/presidential-actions/2025/01/establishing-and-implementing-the-presidents-department-of-government-efficiency/. “This Executive Order establishes the Department of Government Efficiency to implement the President’s DOGE Agenda, by modernizing Federal technology and software to maximize governmental efficiency and productivity.” Ibid., Sec. 1. It takes the existing U.S. Digital Service and renames it the Department of Government Efficiency. Sec. 3. DOGE is established pursuant to 5 U.S. Code 3161, and its authorization runs out on July 4th, 2026. However, and critically, the kind of extravagant, nearly plenary power that DOGE has claimed cannot be sustained under Section 3161, which says (emphasis added) that “the term ‘temporary organization’ means a commission, committee, board, or other organization that — (1) is established by law or Executive order for a specific period not in excess of three years for the purpose of performing a specific study or other project; and (2) is terminated upon the completion of the study or project or upon the occurrence of a condition related to the completion of the study or project.”
But DOGE’s brief so far has been anything but “specific”; rather, it has claimed authority to, variously, to buy out the contracts of millions of federal workers; to access sensitive financial information at the Department of the Treasury; to send its commissars throughout the federal government, including the National Oceanographic and Atmospheric Administration, the Department of Energy, the Department of Education, the Center for Disease Control, among others; this is the opposite of specificity, and such extravagant powers find insufficient support in the thin reed of 5 USC 3161.
Rhian Lubin, “DOGE claimed they had saved $8 billion by slashing one contract. The actual number was $8 million”, The Independent, Feb. 19th, 2025.
John G. Roberts, Jr., Memorandum to Fred F. Fielding, Aug. 15th, 1985, re: Impoundment. “The attached memorandum simply outlines the requirements of the Impoundment Control Act of 1974, 2 U.S.C. §§ 681-688, touches upon the unresolved Chadha issue presented by that Act, and attempts to dampen any hopes that inherent constitutional impoundment authority may be invoked to achieve budget goals. As noted in the memorandum, the question of whether the President has such authority is not free from doubt, but I think it clear that he has none in normal situations, and we should discourage Chew and others from considering impoundment as a viable budget planning option. Our institutional vigilance with respect to the constitutional prerogatives of the presidency requires appropriate deference to the constitutional prerogatives of the other branches, and no area seems more clearly the province of Congress than the power of the purse.” https://www.levernews.com/content/files/2025/01/1985RobertsMemo-Budget.pdf.
Petition of Right, XI, emphasis added. https://en.wikisource.org/wiki/Petition_of_Right.
Massachusetts Body of Liberties, 78. https://oll.libertyfund.org/pages/1641-massachusetts-body-of-liberties.
The English Bill of Rights, 1689. An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown. https://avalon.law.yale.edu/17th_century/england.asp.
See the Speech of Pitt the Elder in the House of Lords, Jan. 22nd, 1770 (emphasis added):
“I have the principles of an Englishman, and I utter them without apprehension or reserve...this is not the language of faction; let it be tried by that criterion, by which alone we can distinguish what is factious, from what is not — by the principles of the English constitution. I have been bred up in these principles, and I know that when the liberty of the subject is invaded, and all redress denied him, resistance is justifiable... the constitution has its political Bible, by which if it be fairly consulted, every political question may, and ought to be determined. Magna Charta, the Petition of Rights and the Bill of Rights, form that code which I call the Bible of the English constitution. Had some of his Majesty's unhappy predecessors trusted less to the commentary of their Ministers, and been better read in the text itself, the glorious Revolution might have remained only possible in theory, and their fate would not now have stood upon record, a formidable example to all their successors.” https://en.wikiquote.org/wiki/William_Pitt,_1st_Earl_of_Chatham
Pitt was extremely well known on this side of the water, and was so popular with the American colonists that he was the subject of toasts. According to the Newport Mercury of May 19, 1766, the toast of Sons of Liberty in Bristol County, Massachusetts was:
“Our toast in general is,—Magna Charta, the British Constitution,—PITT and Liberty forever!”
https://en.wikiquote.org/wiki/William_Pitt,_1st_Earl_of_Chatham)
James Madison, The Federalist No. 48, These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other. https://www.gutenberg.org/files/1404/1404-h/1404-h.htm#link2H_4_0048
James Madison, The Federalist No. 51, The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments. https://www.gutenberg.org/files/1404/1404-h/1404-h.htm#link2H_4_0051.
Alexander Hamilton, The Federalist No. 76, The Appointing Power of the Executive. https://www.gutenberg.org/files/1404/1404-h/1404-h.htm#link2H_4_0076.
Ibid.
Youngstown Co. v. Sawyer, 343 U.S. 579, 587-88 (1952).
Youngstown Co. v. Sawyer, 343 U.S. 579, 589 (1952).
Youngstown Co. v. Sawyer, 343 U.S. 579, 593-94 (1952).
N.H. Indonesian Cmty. Support v. Trump, Civil 25-cv-38-JL-TSM, 3 (D.N.H. Feb. 11, 2025).
Ibid.
N.H. Indonesian Cmty. Support v. Trump, Civil 25-cv-38-JL-TSM, 4-5 (D.N.H. Feb. 11, 2025).
N.H. Indonesian Cmty. Support v. Trump, Civil 25-cv-38-JL-TSM, 5-6 (D.N.H. Feb. 11, 2025).
N.H. Indonesian Cmty. Support v. Trump, Civil 25-cv-38-JL-TSM, 6 (D.N.H. Feb. 11, 2025).
N.H. Indonesian Cmty. Support v. Trump, Civil 25-cv-38-JL-TSM, 6-7 (D.N.H. Feb. 11, 2025).
N.H. Indonesian Cmty. Support v. Trump, Civil 25-cv-38-JL-TSM, 7 (D.N.H. Feb. 11, 2025).
N.H. Indonesian Cmty. Support v. Trump, Civil 25-cv-38-JL-TSM, 10 (D.N.H. Feb. 11, 2025).
N.H. Indonesian Cmty. Support v. Trump, Civil 25-cv-38-JL-TSM, 10-11 (D.N.H. Feb. 11, 2025).
N.H. Indonesian Cmty. Support v. Trump, Civil 25-cv-38-JL-TSM, 11 (D.N.H. Feb. 11, 2025).
N.H. Indonesian Cmty. Support v. Trump, Civil 25-cv-38-JL-TSM, 8 (D.N.H. Feb. 11, 2025).
N.H. Indonesian Cmty. Support v. Trump, Civil 25-cv-38-JL-TSM, 11 (D.N.H. Feb. 11, 2025).
https://en.wikiquote.org/wiki/William_Pitt,_1st_Earl_of_Chatham.
Thomas Paine, The Rights of Man, p. 141. https://archive.org/details/PaineRightsOfMan/page/n139/mode/2up?q=monarchical&view=theater.
https://www.town.duxbury.ma.us/sites/g/files/vyhlif10506/f/uploads/right_to_farm_by-law_notification.pdf.