Systems understanding in the age of Trump

Phrase of the Day: stare decisis, a Latin phrase meaning “to stand by things decided”

To sum up a complex system, the United States operates fundamentally on the notion of precedent. Court cases are decided based on previous court decisions with consideration of new arguments. There are different types of precedent that changes the weighting of arguments versus decisions. There's also the hierarchy of courts to consider. However, the overall outcome is such that a that we change things usually in increments rather than wildly swinging back and forth at the whim of political temperatures. This is a good thing. It gives us stability and confidence in our actions, practices, decisions and planning.

This is also why there is so much being said, both in his previous term and this new one, about Trump's defiance of norms and traditions. Because each time he doesn't follow our systems, he establishes a new precedent for what is and isn't allowed. Some folks cheer this. They find our systems now to be too slow to change to their liking as quickly as they wish so this norm-breaking approach works for them. Others are uncomfortable with this because what may work out in the short-term becomes exponentially unpredictable in the long-term.

There are two significant examples from the last few days alone that are important to unpack.

TikTok

I'm not commenting on the rightness or wrongness of the TikTok ban, the nuances of the decision-making or whether the decisions were sound, this is purely about the procedure of it.

A law to ban TikTok was rapidly considered and passed by Congress in March of 2024.

Biden signed the law in April of 2024.

The law was challenged in court and the Supreme Court upheld the law in January 2025.

TikTok went offline on Saturday, January 18, 2024, before it was legally required to, only to reappear hours later on Sunday, January 19. The closure was marked by two messages, one initially just saying the app was unavailable.

"Important update from TikTok
We regret that a U.S. law banning TikTok will take effect on January 10 and force us to make our services temporarily unavailable. We're working to restore our service in the U.S. as soon as possible, and we appreciate your support. Please stay tuned."

However, later in the evening, that message changed to specifically reference Trump.

"Sorry, TikTok isn't available right now
A law banning TikTok has been enacted in the U.S. Unfortunately, that means you can't use TikTok for now. We are fortunate that President Trump has indicated that he will work with us on a solution to reinstate TikTok. once he takes office. Please stay tuned."

When the app returned hours later, the new message stated:

"Welcome back!
Thanks for your patience and support. As a result of President Trump's efforts, TikTok is back in the U.S.! You can continue to create, share, and discover all the things you love on TikTok."

It is important to note that service was restored before Trump was sworn in making the scope of his "efforts" unclear and potentially legally questionable.

However, multiple app stores are still not displaying the app because the legal grounds for the law being paused are not sound.

TikTok CEO Shou Zi Chew attended a Trump rally on Sunday before attending the inauguration on January 20. Later that day, Trump signed an executive order to not enforce the ban for 75 days.

Trump is claiming:

"Essentially with TikTok I have the right to sell it or close it," Trump said from the Oval Office after signing the executive action on Monday. "We may have to get approval from China. I'm not sure. I'm sure they'll approve."

Which is not actually how this works. The president can issue an order under these circumstances, however, there are requirements of such an order.

From NPR:

While Trump's executive action Monday attempts to clarify the legal landscape for TikTok, Constitutional scholar Alan Rozenshtein of the University of Minnesota Law School said trying to extend the law's start date and insulate companies from liability does not change an act of Congress

and

The law does allow one exception: TikTok can continue to operate if Trump certifies to Congress that "significant progress" has been made toward TikTok breaking away from ByteDance's ownership.

The law requires that Trump show Congress there are legally binding agreements in motion over ownership changes at TikTok.

Rozenshtein said if Trump tells Congress those things have happened, when they have not, in order to extend the legal start date of the ban, then "that would effectively mean one of his first acts as president would be lying to Congress."

Now we're caught up. So what's the issue?

We're in an uncommon, and rightfully so, situation of a law that was passed by Congress and upheld by the Supreme Court being interfered with by a president. That is a series of events that should be exceedingly rare, given our system of government, and it happened on Day 1.

What makes it dangerous is the perception of events being engineered.

First, TikTok is extremely popular with a user base of approximately 170 million people in the United States. It's a huge economic driver for content creators and small businesses. Those users were deeply alarmed by the loss of a platform that created income opportunities. Other users found TikTok to be politically important as a venue for free speech. So there is a significant invested user base.

Many people not on the platform view it as just another social media app. One that could come and go just like any other so it's disappearance shouldn't be a big deal and also it's reappearance isn't that big of a deal. One commenter in my social network stated: "At the end of the day, I’m glad it’s back and millions of American people are happy too. Why can’t we just be that?"

Setting aside the actual legal issues still exist, Trump's concerning and confusing comments about the U.S. owning 50% of it, tech companies operating in a grey area in which several are not going to put themselves at risk and users now concerned about the app leadership's sudden celebration of Trump, we should not disregard the series of events from a procedural standpoint.

Because of precedent. Because we do not want a system in which the president of the United States makes common practice of interfering with passed and signed legislation, let alone legislation upheld by the Supreme Court. That opens up all kinds of doors you do not want opened if you want a stable, functioning democracy.

Speaking of things that are firmly established and codified beyond all doubt...

Birthright citizenship & the 14th Amendment

The 14th Amendment was passed on June 8, 1866, and ratified two years later, on July 9, 1868.

In 1898, the US Supreme Court affirmed that birthright citizenship applies to the children of immigrants in the case of Wong Kim Ark v United States. In the majority opinion written by Justice Horace Gray:

"the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of 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. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States."

It has been the law of the land for more than 150 years.

On Monday, January 20, 2025 within hours of the inauguration and swearing to "preserve, protect and defend the Constitution of the United States," Trump signed an executive order to end birthright citizenship.

Trump said:

"It's ridiculous. We're the only country in the world that does this [grants automatic citizenship], as you know,"

Which is factually incorrect as the vast majority of countries in North and South America practice birthright citizenship as well as some countries on other continents.

Trump's goal, with this order, is to end the granting of citizenship of children born to parents in limbo within our broken immigration system.

Not even getting into the actual harm such a change will inflict on millions of people, such a sweeping and dramatic exit from decades of precedent with regard to the interpretation of a Constitutional amendment has never been intended to be available to the President through executive orders or any other unilateral means. Such a practice becoming common would wildly destabilize the function of our nation.

Using an executive order to challenge a Constitutionally supported (and Supreme Court validated) practice is destructive by nature because it creates immediate chaos as opposed to filing a suit or pursuing an amendment through Congress. The latter being extremely unlikely to succeed given the 2/3 vote threshold in both chambers that is required.

Already the order has accumulated nearly two dozen lawsuits against it as it is a radical departure of how the country has functioned for more than a century. I won't get into the legal arguments around it, far more qualified legal scholars will unpack this in depth over the coming months.

I want to unpack the public reception of this. I've been looking through various local media outlet social posts on the topic to see the comments and I'm seeing things like birthright citizenship is "being abused," "not being used as intended" and "has become a problem" as justification for supporting Trump's attempt to use an executive order to undermine the Constitution.

Which is absolutely fascinating, given his base's ardent refusal to even entertain the smallest limitations to the exercise of the 2nd Amendment which is astoundingly vague compared to the 14th Amendment.

If you're going to argue that "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" is somehow not conclusive while "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" means any person should be able to obtain and use guns with exceedingly little "regulation," I have a lot of questions.

That there is no through-line being drawn—that if you're okay with it here but not okay with it on this other issue—for people as they learn about the mechanics of this process is an error in how this is being explained to the country.

And this brings us back to precedent. In addition to court precedent, there is also the general acceptance of actions and tactics that become normalized. There are a multitude of things Presidents have done or not done historically, not because they are in a rule book but because they were tradition.

We already watched Trump's blistering campaign of tradition-breaking in his first term and that has already normalized to an extent his clearly intended repeat performance of the same behavior. (The Emoluments Clause is basically a smoldering crater devoid of all signs of life at this point.)

What is missing so far in the news and social media breakdowns of Trump's break down of procedural rules is consistent explanation of what this means for the precedent he is establishing for what a President can and cannot do, literally, and what a President should and should not do, as governed by norms and traditions.

It matters more than ever that people who may support one issue that resonates with them understand how the procedures and practices used on a case where they might not mind it can and will be used later for issues where they very much will mind it and will have no recourse because the precedent is established.

Our civic literacy is in a critical state. What we tolerate today, we are tacitly condoning tomorrow.