Executive Order 13823 and the Guantanamo Dilemma: Immigration Detention at the Edge of the Law

By: Lana Alnajm

Edited by: Valerie Chu and Claire Quan

For years, Guantanamo Bay has been at the center of America’s most divisive detention policies, emblematic of debates over national security and the legal limits of executive power. 

Now, its purpose may be evolving once again. Last Wednesday, President Trump announced a highly contentious executive order that tasks the Pentagon and Department of Homeland Security with preparing Guantanamo for its new mission: to house “the worst criminal illegal aliens threatening the American people.” [1]  In this decision, Trump builds on the controversial and security-focused Executive Order 13823. 

Executive Order 13823, signed by President Trump back in his previous term, doubled down on the idea that individuals deemed a “threat” to national security can be held indefinitely without due process of law—no courtroom “drama” required. [2] With this directive, the administration cemented its commitment to using Guantanamo as the detention destination, defying both domestic and international outcries for closure. Though framed in the name of "national security," many critics have argued that this is  a playbook for skirting the fine print of human rights and due process. [3]  Empirical data from the Congressional Research Service highlights that of the 780 detainees ever held at Guantanamo, only a handful have faced formal charges or trials, illustrating the lack of due process. [4]
The recent extension of Executive Order 13823 has sparked a myriad of legal questions. They range from concerns about due process and international law to the broader jurisdictional issues related to Guantanamo Bay itself. Nestled outside the U.S. mainland, Guantanamo exists in a legal no-man’s-land, where detainees are often stripped of the rights and protections they would typically receive under U.S. law. [5] This legal gray area raises concerns that holding migrants there serves as a loophole to bypass standard immigration procedures and constitutional safeguards. [6] ACLU lawsuits filed in 2025 against the administration indicate that detainees have been denied legal counsel and meaningful asylum hearings, reinforcing fears of due process violations. [7] Additionally, past cases, such as Boumediene v. Bush (2008), set a precedent that even non-citizens detained at Guantanamo have a right to challenge their detention. However, legal analysts argue that the current repurposing of Guantanamo attempts to circumvent this ruling by classifying detainees under different legal frameworks. For some, it represents a strategic circumvention of legal norms, while for others it signals a deeper erosion of the principles of justice and due process that should govern the nation’s treatment of all individuals. 

Another point of contention is the potential for blatant violations of international human rights agreements, such as the Universal Declaration of Human Rights. This agreement, and others similar in scope, require that individuals are not subject to inhumane treatment, a criticism that has surfaced numerous times in the past regarding Guantanamo’s condition. [8] Reports from human rights organizations, such as Amnesty International and the UN Human Rights Council, have detailed instances of mistreatment, ranging from forced feedings to prolonged solitary confinement. [9] The history of such abuses at Guantanamo raises legitimate concerns about whether migrant detainees would face similar conditions, despite international law explicitly prohibiting cruel, inhumane, and degrading treatment.

Furthermore, a subtle and significant concern among legal scholars is the potential erosion of the distinction between immigration enforcement and national security policy.  Repurposing Guantanamo—which has long been synonymous with terrorism and counterterrorism efforts—as a holding site for migrants risks setting a precedent in which the legal boundary between security threats and immigration infractions becomes blurred. [10] Historical parallels can be drawn from the post-9/11 expansion of national security policies into areas traditionally governed by immigration law, such as the PATRIOT Act's impact on immigration detention. [11] 

The broader implications of this can mean turning routine immigration issues into issues of national security, fundamentally altering the very framework through which immigration is governed.

The question of indefinite detention also looms large. Historically, Guantanamo has been a site for holding individuals without trial for extended periods, under the justification of national security. Applying this model to migrants could raise legal challenges, particularly as it might contravene both U.S. and international law, which generally opposes indefinite detention without due process or trial. [12] Data from the CRS report indicates that several detainees have been held for over a decade without charges, a precedent that could be dangerously extended to asylum seekers. [13] Given the ongoing backlogs and due process violations plaguing U.S. immigration detention facilities, critics fear that Guantanamo’s isolation will only deepen the challenges of oversight and accountability, further obscuring the system’s failures from scrutiny.

Among these, the due process issue stands out as the most relevant and pressing. With Guantanamo’s detainees potentially lacking key legal protections, critics see this as a direct affront to constitutional rights—an open invitation for legal battles to unfold. The irony isn’t lost on those who hold the U.S. legal system in high regard: a nation built on upholding civil liberties might find itself caught in the very web of injustice it seeks to avoid. Critics contend that such a move would undermine the very fundamental threads of justice that bind the nation and its law together. 
So, as Guantanamo Bay becomes the new frontier in immigration detention and policy, must we believe the government is safeguarding national security, or are we just creating a legal Bermuda Triangle where due process and human rights get lost in the shuffle, but this time, cannot slip by unnoticed?

Notes:

1. Sacha Pfeiffer, “Trump Says the U.S. Will Send the ‘Worst Criminal Illegal Aliens’ to Guantánamo Bay,” NPR, January 30, 2025, https://www.npr.org/2025/01/30/g-s1-45454/trump-says-u-s-will-send-worst-criminal-illegal-aliens-to-guantanamo-bay.

2. Executive Order 13823, Protecting America Through Lawful Detention of Terrorists, 3 C.F.R. 254 (2018).

3. Michael Kunzelman, “ACLU Sues for Access to Migrants Flown to Guantanamo This Month,” AP News, February 13, 2025, https://apnews.com/article/guantanamo-aclu-trump-migrants-ad918a8440826cf645ce7778b3ccc6c6.

4. Congressional Research Service, "Guantanamo Detainees: Constitutional Rights and Legal Issues," CRS Report for Congress, 2018, https://crsreports.congress.gov/product/pdf/LSB/LSB10654.

5. Congressional Research Service, "Guantanamo Detainees: Constitutional Rights and Legal Issues," CRS Report for Congress, 2018, https://crsreports.congress.gov/product/pdf/LSB/LSB10654.

6. Jonathan Blazer and Katie Hoeppner, “Five Things to Know About the Right to Seek Asylum,” American Civil Liberties Union, August 10, 2023, https://www.aclu.org/news/immigrants-rights/five-things-to-know-about-the-right-to-seek-asylum.

7. Michael Kunzelman, “ACLU Sues for Access to Migrants Flown to Guantanamo This Month,” AP News, February 13, 2025.

8. United Nations, “The Foundation of International Human Rights Law,” n.d., https://www.un.org/en/about-us/udhr/foundation-of-international-human-rights-law.

9.  United Nations Office of the High Commissioner for Human Rights, "United States: Prolonged Solitary Confinement Amounts to Psychological Torture," February 19, 2020, https://www.ohchr.org/en/press-releases/2020/02/united-states-prolonged-solitary-confinement-amounts-psychological-torture.

10. Council on Foreign Relations, "Guantanamo Bay: Twenty Years of Counterterrorism and Controversy," January 11, 2022, https://www.cfr.org/article/guantanamo-bay-twenty-years-counterterrorism-and-controversy.

11. Migration Policy Institute, "Two Decades After 9/11: Immigration and National Security," September 8, 2021, https://www.migrationpolicy.org/article/two-decades-after-sept-11-immigration-national-security

12. “The Immigration Consequences of Relocating Guantanamo Detainees,” Yale Law & Policy Review, n.d., https://yalelawandpolicy.org/immigration-consequences-relocating-guantanamo-detainees.

13. Congressional Research Service, "Guantanamo Detainees: Constitutional Rights and Legal Issues," CRS Report for Congress, 2018, https://crsreports.congress.gov/product/pdf/LSB/LSB10654.

Bibliography :

Blazer, Jonathan, and Katie Hoeppner. “Five Things to Know About the Right to Seek Asylum.” American Civil Liberties Union, August 10, 2023. https://www.aclu.org/news/immigrants-rights/five-things-to-know-about-the-right-to-seek-asylum.

Council on Foreign Relations. "Guantanamo Bay: Twenty Years of Counterterrorism and Controversy." January 11, 2022. https://www.cfr.org/article/guantanamo-bay-twenty-years-counterterrorism-and-controversy.

Congressional Research Service. "Guantanamo Detainees: Constitutional Rights and Legal Issues." CRS Report for Congress, 2018. https://crsreports.congress.gov/product/pdf/LSB/LSB10654.

Executive Order 13823, Protecting America Through Lawful Detention of Terrorists, 3 C.F.R. 254 (2018).

Kunzelman, Michael. “ACLU Sues for Access to Migrants Flown to Guantanamo This Month.” AP News, February 13, 2025. https://apnews.com/article/guantanamo-aclu-trump-migrants-ad918a8440826cf645ce7778b3ccc6c6.

Migration Policy Institute. "Two Decades After 9/11: Immigration and National Security." September 8, 2021. https://www.migrationpolicy.org/article/two-decades-after-sept-11-immigration-national-security.

Pfeiffer, Sacha. “Trump Says the U.S. Will Send the ‘Worst Criminal Illegal Aliens’ to Guantánamo Bay.” NPR, January 30, 2025. https://www.npr.org/2025/01/30/g-s1-45454/trump-says-u-s-will-send-worst-criminal-illegal-aliens-to-guantanamo-bay.

“The Immigration Consequences of Relocating Guantanamo Detainees.” Yale Law & Policy Review. N.d. https://yalelawandpolicy.org/immigration-consequences-relocating-guantanamo-detainees.

United Nations. “The Foundation of International Human Rights Law.” N.d. https://www.un.org/en/about-us/udhr/foundation-of-international-human-rights-law.

United Nations Office of the High Commissioner for Human Rights. “United States: Prolonged Solitary Confinement Amounts to Psychological Torture.” February 19, 2020. https://www.ohchr.org/en/press-releases/2020/02/united-states-prolonged-solitary-confinement-amounts-psychological-torture.

The Unitary Executive Theory and Donald Trump’s Transformation of Executive Power

By: Anika Jaitley

Edited by: Melany Torres and Anna Dellit

President Donald Trump’s signing of executive orders during the first month of his second term of presidency has been historic, in terms of their sheer number and the magnitude of issues they target. [1] Executive orders, defined as “presidential directives to executive branch agencies that tell them how to implement existing laws,” have historically been used sparingly or as a last resort when legislative support is lacking. [2] However, Trump’s unprecedented use of 54 executive orders in his first two weeks in office signals a deliberate strategy to expand executive power, bypass Congress, and reshape the federal government in alignment with his MAGA agenda. [3] Trump’s actions, rooted in the controversial unitary executive theory, represent a direct challenge to the constitutional principle of separation of powers and pose long-term risks to American democracy.

Donald Trump’s sweeping assertion of power stems from a controversial legal doctrine, the unitary executive theory. The unitary executive theory is a Constitutional law theory that states that “the President of the United States possesses sole authority over the Executive branch.” [4] In other words, the executive is one person: the president and only the president. The unitary executive theory, while controversial, is not new. Its origins can be traced to Federalist No. 70, where Alexander Hamilton argued for a strong, singular executive to ensure accountability and decisiveness in governance. [5] However, modern interpretations of the theory, particularly those embraced by Trump and his allies, go far beyond Hamilton’s vision by rejecting Congressional oversight. [6] This type of ideology threatens the separation of powers - a fundamental Constitutional system. Historically, presidents such as Franklin D. Roosevelt and Abraham Lincoln have also expanded executive power during times of crisis, but Trump’s use of executive orders lacks the same justification of national emergency, raising questions about constitutionality. [7]

Article II of the U.S. Constitution opens with the declaration that “[t]he executive power shall be vested in a President of the United States.” [8] Trump and other proponents of the unitary executive theory argue that it is a legitimate interpretation of the Constitution as Article II vests executive power solely in the president. [9] However, critics worry that this interpretation undermines the principle of separation of powers by granting too much power to one individual. In Trump’s case, his use of executive orders to bypass Congress and challenge constitutional norms raises questions about the ability of other branches to act as effective checks on executive power.

In his quest to establish himself as the unitary executive, Trump has used his executive orders to expand and transform executive power while infringing on powers delegated to others by the Constitution. Some historians and legal scholars state that Trump has shown a significantly “greater willingness than his predecessors to violate the Constitution.” [10] One of Trump’s most controversial second-term executive orders has been the bid to end birthright citizenship, a move widely criticized as unconstitutional under the 14th Amendment, which guarantees U.S. citizenship to all individuals born on American soil. [11] Similarly, his executive order freezing federal funding for certain programs was in direct violation of Article I of the Constitution, which grants Congress the power of the purse. [12] These are clear instances in which Trump seeks to establish himself as the unitary executive, specifically by exerting himself above Congress, and even the Constitution.

One executive order in particular, titled “Ensuring Accountability for All Agencies” (EO 14215), stands out as a key example of Trump’s application of the unitary executive theory to assert centralized authority over the entire executive branch. [13] The order mandates that independent agencies under the executive branch, such as the Federal Communications Commission (FCC), Securities and Exchange Commission (SEC), and Environmental Protection Agency (EPA), align their regulatory, interpretive, and enforcement priorities with White House policies. [14] By eliminating the traditional autonomy of independent executive agencies, EO 14215 represents a dramatic expansion of presidential control over the executive branch. Congress established these agencies to operate independently, insulated from political influence and presidential control, to ensure fair enforcement of laws and regulations. Trump’s executive order undermines this neutrality, transforming the agencies into extensions of the president’s political agenda. This shift consolidates executive power and raises concerns about the weakening of institutional checks on presidential authority.

Laurence Tribe, a leading U.S. constitutional scholar and a professor emeritus at Harvard Law School, stated that Trump has carried out “a blitzkrieg on the law and the constitution. The very fact that the illegal actions have come out with the speed of a rapidly firing Gatling gun makes it very hard for people to focus on any one of them.” [15] Furthermore, by issuing a rapid-fire series of executive orders, Trump has effectively weaponized the slow pace of judicial review. Many of these orders have faced significant legal challenges, but their sheer volume has overwhelmed the judiciary, allowing some orders to remain in effect for extended periods of time before they can be overturned. This strategy strengthens executive power and limits the judicial branch’s ability to act as an effective check on executive overreach. 

Trump’s unprecedented use of executive orders during his second term has transformed the scope of executive power and set a dangerous precedent for future administrations. If left unchecked, this expansion of executive authority could permanently alter the balance of power among the branches of government, undermining the constitutional principle of separation of powers.

Notes:

1. Meredith Conroy, “Trump's record number of executive orders are testing the limits of presidential power,” ABC News, February 6, 2025, https://abcnews.go.com/538/trumps-record-number-executive-orders-testing-limits-presidential/story?id=118535046.

2. Conroy, “Trump’s record number of executive orders are testing the limits of presidential power.”

3. Conroy, “Trump’s record number of executive orders are testing the limits of presidential power.”

4. “Unitary Executive Theory (UET),” Cornell Law School, Accessed February 13, 2025, https://www.law.cornell.edu/wex/unitary_executive_theory_%28uet%29.

5. Alexander Hamilton, “Federalist No. 70,” Federalist Papers: Primary Documents in American History - Federalist Nos. 61-70, Accessed March 24, 2025, https://guides.loc.gov/federalist-papers/text-61-70.

6. Alexandra Hutzler, “Trump and the ‘Unitary Executive’: The Presidential Power Theory Driving His 2nd Term,” ABC News, February 7, 2025, https://abcnews.go.com/Politics/trump-unitary-executive-presidential-power-theory-driving-2nd/story?id=118481290.

7. Conroy, “Trump’s record number of executive orders are testing the limits of presidential power.”

8. “Article II Executive Branch,” Constitution Annotated, Accessed February 13, 2025, https://constitution.congress.gov/browse/article-2/.

9. Hutzler, “Trump and the ‘Unitary Executive.’”

10. Steven Greenhouse, “Trump’s Disregard for US Constitution ‘a Blitzkrieg on the Law’, Legal Experts Say,” The Guardian, February 1, 2025, https://www.theguardian.com/us-news/2025/feb/01/trump-executive-orders-constitution-law.

11. “2025 Donald J. Trump Executive Orders,” Federal Register, Accessed February 13, 2025, https://www.federalregister.gov/presidential-documents/executive-orders/donald-trump/2025.

12. “2025 Donald J. Trump Executive Orders.”

13. “2025 Donald J. Trump Executive Orders.”

14. “2025 Donald J. Trump Executive Orders.”

15. Greenhouse, “Trump’s Disregard for US Constitution ‘a Blitzkrieg on the Law.’”

Bibliography:

Conroy, Meredith. “Trump's record number of executive orders are testing the limits of presidential power.” ABC News, February 6, 2025. https://abcnews.go.com/538/trumps-record-number-executive-orders-testing-limits-presidential/story?id=118535046.

Greenhouse, Steven. “Trump’s Disregard for US Constitution ‘a Blitzkrieg on the Law’, Legal Experts Say.” The Guardian, February 1, 2025. https://www.theguardian.com/us-news/2025/feb/01/trump-executive-orders-constitution-law.

Hamilton, Alexander. “Federalist No. 70.” Federalist Papers: Primary Documents in American History - Federalist Nos. 61-70. Accessed March 24, 2025. https://guides.loc.gov/federalist-papers/text-61-70.

Hutzler, Alexandra. “Trump and the ‘Unitary Executive’: The Presidential Power Theory Driving His 2nd Term.” ABC News, February 7, 2025. https://abcnews.go.com/Politics/trump-unitary-executive-presidential-power-theory-driving-2nd/story?id=118481290.

“2025 Donald J. Trump Executive Orders.” Federal Register. Accessed February 13, 2025. https://www.federalregister.gov/presidential-documents/executive-orders/donald-trump/2025.

“Article II Executive Branch.” Constitution Annotated. Accessed February 13, 2025. https://constitution.congress.gov/browse/article-2/.

“Unitary Executive Theory (UET).” Cornell Law School. Accessed February 13, 2025. https://www.law.cornell.edu/wex/unitary_executive_theory_%28uet%29.

One Nation Under God: Legal Challenges to the Separation of Church and State

By: Oscar Guzzino

Edited by: chloe shah and Simon carr

Last month, President Trump issued an executive order that degrades a core pillar of the Constitution: the separation of church and state. The order established the White House Faith Office (WHFO) in place of the Office of Faith-Based and Neighborhood Partners (OFBNP). President Trump designed the organization to support the development of faith-based organizations and institutions while facilitating their cooperation with the government. [1] The WHFO poses a worrying challenge to the pillar of church and state separation, and it’s arguably unconstitutional. Furthermore, the President’s rhetoric surrounding the office indicates his plans to build a Christian-dominated legal power structure.

The February 7th executive order only renamed a previously existing organization, the White House Office of Faith-Based and Neighborhood Partners (OFBNP). [2] This organization has always been controversial with regards to government independence from religious organizations. For example, in 2007, the Supreme Court heard Hein v. Freedom from Religion Foundation, in which the Freedom from Religion Foundation (FRF) argued that the OFBNP wrongfully violated the Establishment Clause of the First Amendment. [3] The Court ruled that the FRF had no standing to sue, but this was just one of many challenges to the OFBNP and the continuing modern trend of church-state intermingling. Additionally, in 2002, the FRF attempted to sue Wisconsin correctional authorities for using state funds to support a Christian halfway house in Freedom from Religion Foundation v. McCallum, arguing that the funding violated the Establishment Clause. [4] However, the court ruled that the halfway house served a legitimate secular purpose and was therefore not in violation with the clause. While the White House Faith Office and its applications have precedent, there is still danger of unconstitutional applications of the WHFO.

The executive order issued on the 7th of February states that the WHFO has duties to “convene meetings with representatives from the Centers for Faith,” advise the President on methods by which policy can be implemented “enabling faith-based entities…to better serve families and communities,” and “coordinate with all agencies” to better allow “faith-based entity grantees to build their capacity to procure grants,” as well as several other functions. [5] President Trump is restructuring the office to create not only a strong cooperation between faith-based organizations and the government, but a significant level of support as well. Specifically, the WHFO pledges to help religious organizations increase their capacity to acquire grants and raise money. Additionally, the WHFO offers an avenue for faith-based organizations to influence policy decisions, as the WHFO, which meets with these organizations, is tasked with recommending policy and programs to the president that would be beneficial to them. These duties, while not new, are a blatant affront to the Establishment Clause.

While the plain text of the executive order is non-denominational, it would be practically impossible for a President to utilize this office in a manner that respects the First Amendment, which restricts the government from promoting an “establishment of religion”. [6] The aid of any faith-based entity in acquiring grants or advantageous legislation would constitute a promotion of the establishment of that entity’s religion. Because faith-based entities are, by definition with very few exceptions, always supporting one specific religion, aiding them would provide an advantage to that religion’s institutions, signifying a promotion of it. This is a violation of the Establishment Clause, which explains the unprecedented nature of this executive order.

In 1971, the Supreme Court ruled in Lemon v. Kurtzman that a statute not in violation of the Establishment Clause must serve a legitimate secular purpose, refrain from advancing or inhibiting religion, and prevent excessive government entanglement with religion. [7] While the WHFO does serve a legitimate secular purpose in securing funding for religious organizations, it undoubtedly fails the other two tests. The WHFO by nature advances religion by giving religious groups elite access to the White House and making it easier for them to secure funding. Additionally, the Office grievously entangles the government with religious organizations by creating infrastructure for mingling between the two bodies. With the avenues proposed by the WHFO, religious organizations rely on the government to help them secure funding and meet with political leaders. In this way, the government and religious organizations become linked together, failing the Lemon test.

The White House Faith Office’s violation of the First Amendment is a bad omen for the future of the separation of church and state. By allowing religious institutions VIP access to the executive branch, Trump allows said institutions to influence the implementation of policy in such a way that further undermines the separation of church and state. For example, a Catholic church that is invited to a WHFO meeting to discuss grant allocations could influence the President to provide greater funds to localities or municipalities with a high number of Catholic churches or organizations. These funds would increase the influence of these bodies, making it easier for them to gain more access to the WHFO and repeat the cycle. Clearly, the involvement of religious bodies within the executive is a slippery slope that undermines the storied independence of the state from religion.

There have been other challenges to the Establishment Clause throughout recent years that, when combined with the WHFO, could severely disrupt the separation of church and state. For example, in March of 2017, President Trump in his first term ordered a travel ban on immigrants from predominantly Muslim nations. [8] This executive order was a staunch attack on the separation of church and state, as the barring of certain religious groups from entry to the US effectively promoted the establishment of others. While President Biden undid this executive order, the arrival of President Trump, now in his second term, opens the door to its potential return. [9] Additionally, on January 24th, 2025, the Supreme Court agreed to hear a case in Oklahoma regarding the legality of withholding state funds to religious charter schools. [10] Even considering this case suggests the possibility of publicly funding a religious charter school, which completely intermingles the state with religion, as tax dollars fund religious teachings, a scenario reminiscent of landmark Supreme Court case Engel v. Vitale, holding that prayer in a publicly-funded school is unconstitutional. [11]

These challenges, when combined with the government access given to faith-based institutions by the WHFO, raise serious concerns about the fate of government independence from religion. Continued attacks to this principle cause it to erode over time, allowing our nation to crumble into theocracy. 

Additionally, the President’s rhetoric surrounding the establishment of the WHFO suggests a continuing issue of Christian persecution, which can be dangerous for religious pluralism in America. Prior to the issuing of the executive order, President Trump remarked that he wished to “root out ‘anti-Christian biases’”. [12] The President has consistently advocated Christian lifestyles to his constituents and, paired with the establishment of the WHFO, ordered the creation of a task force, led by Attorney General Pam Bondi to investigate anti-Christian persecution. [13] While the Trump administration propagates that anti-Christian persecution is a serious problem, this is far from the truth. In 2023, the Organization for Security and Cooperation in Europe Office for Democratic Institutions and Human Rights Hate Crime Report found 2833 hate crimes in America motivated by religion or belief, with only 290 of them being strictly anti-Christian. In comparison, there were 2006 hate crimes targeting the Jewish population, seven times those targeting Christians. [14]

This disparity between the Trump administration’s beliefs and reality is incredibly dangerous. Matthew Taylor, a scholar at the Institute for Islamic, Christian, and Jewish Studies, argues that a majority such as Christians claiming to suffer intense persecution can become an excuse for them to target religious minorities. [15] President Trump’s statistically inaccurate concern towards anti-Christian persecution could become dangerous for religious minorities, as it could allow Trump to cement a Christian-dominated power structure. While the WHFO and similar organizations serve to erode the separation of church and state legally, this rhetoric erodes it socially. As a society begins to fear anti-Christian persecution and attack religious minorities, it associates a state more and more with Christianity, eroding social concepts of the separation of church and state.

The White House Faith Office and the President’s rhetoric surrounding its creation and purpose are incredibly dangerous to America’s legal tradition of the separation of religion and government. If left unchecked, Trump’s actions may provide an avenue for the persecution of religious minorities and, over time, a shift towards theocracy.

Notes:

1. “Establishment of the White House Faith Office,” Whitehouse.gov, February 7, 2025, https://www.whitehouse.gov/presidential-actions/2025/02/establishment-of-the-white-house-faith-office/.

2. Exec. Order No. 13498, 3 C.F.R. 6533 (2009).

3. Hein v. Freedom from Religion Foundation, 551 U.S. 587 (2007)

4. Freedom From Religion Foundation v. McCallum, 179 F. Supp. 2d 950 (W.D. Wis. 2002)

5. “Establishment of the White House Faith Office”

6. U.S. Const. amend. I.

7. Lemon v. Kurtzman, 403 U.S. 602 (1971)

8. “Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States,” Trump White House Archives, March 6, 2017, https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-protecting-nation-foreign-terrorist-entry-united-states-2/. 

9. Joseph R. Biden, Jr., Proclamation 10141—Ending Discriminatory Bans on Entry to the United States Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/347812 

10. John Fritze, “Supreme Court to Weigh Constitutionality of Nation’s First Religious Charter School,” CNN, January 24, 2025, https://www.cnn.com/2025/01/24/politics/supreme-court-charter-school-religion-funding/.

11. Engel v. Vitale, 370 U.S. 421 (1962).

12. Aamer Madhani and Peter Smith, “Trump Signs Executive Order to Establish a White House Faith Office,” PBS, February 7, 2025, https://www.pbs.org/newshour/politics/watch-live-trump-signs-executive-orders-related-to-faith-announcement.

13. Ibid.

14. “United States of America,” OSCE ODIHR Hate Crime Report, 2023, https://hatecrime.osce.org/united-states-america?year=2023. 

15. Aamer Madhani and Peter Smith, “Trump Signs Executive Order to Establish a White House Faith Office.”

Bibliography:

“Establishment of the White House Faith Office,” Whitehouse.gov, February 7, 2025, https://www.whitehouse.gov/presidential-actions/2025/02/establishment-of-the-white-house-faith-office/.

“Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States,” Trump White House Archives, March 6, 2017, https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-protecting-nation-foreign-terrorist-entry-united-states-2/. 

John Fritze, “Supreme Court to Weigh Constitutionality of Nation’s First Religious Charter School,” CNN, January 24, 2025, https://www.cnn.com/2025/01/24/politics/supreme-court-charter-school-religion-funding/.

Emma Green, “White Evangelicals Believe They Face More Discrimination Than Muslims,” The Atlantic, March 10, 2017, https://www.theatlantic.com/politics/archive/2017/03/perceptions-discrimination-muslims-christians/519135/.

Aamer Madhani and Peter Smith, “Trump Signs Executive Order to Establish a White House Faith Office,” PBS, February 7, 2025, https://www.pbs.org/newshour/politics/watch-live-trump-signs-executive-orders-related-to-faith-announcement.

“United States of America,” OSCE ODIHR Hate Crime Report, 2023, https://hatecrime.osce.org/united-states-america?year=2023. 

Joseph R. Biden, Jr., Proclamation 10141—Ending Discriminatory Bans on Entry to the United States Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/347812 

Tik Tok has Cracked the U.S. Constitution, Why Doesn’t Anyone Care?

By: Jared Fischer

Edited by: Lauren Levinson and anna dellit

Today, you don’t have to use TikTok to understand the mobile app’s importance. The popular Chinese-owned social media platform boasted 170 million active American users as of January 2024, and has been the topic of much discourse as its popularity has grown. [1] Federal officials initially raised concerns about TikTok and its parent company, ByteDance, in July of 2020, when then Secretary of State Mike Pompeo first announced that the U.S. was considering banning the app from American users, citing concerns about data theft and content censorship by Chinese government officials. [2] Since then, TikTok has been subject to multiple federal investigations, Congressional probes, and even outright bans. In an extremely polarized America, the issue seemingly defies political conventions––the app has been criticized by members of both major American political parties and bans have been attempted by both Republican and Democratic administrations. Still, few government officials, outside of vague platitudes, have been overly forthcoming about the specific national security threats posed by TikTok. Today, although the platform is technically banned in the U.S., TikTok remains operational due to President Joe Biden and President Donald Trump’s decision to not enforce the legislation banning the app, legislation that they each once supported. 

1. Background

The first time the Federal Government attempted to ban TikTok was in 2020. Soon after Secretary of State Pompeo’s initial announcement about the potential national security concerns associated with TikTok’s, on August 6, 2020, President Trump signed an executive order banning Tik Tok, as well as the Chinese messaging app, We Chat, from operating in the U.S. if not sold to an American company. [3] The President’s executive action was met with legal challenges from both apps, with TikTok claiming Trump’s executive order to be unlawful on multiple fronts. [4] First, TikTok argued that the International Emergency Economic Powers Act (IEEPA), the piece of legislation Trump claimed gave him the authority to ban the platform without Congress, specifically prevents the kind of action that Trump was aiming to accomplish by banning TikTok. The IEEPA was passed by Congress in 1977 and signed into law by President Jimmy Carter. The Act gives the President special powers to regulate international commerce during national emergencies. As such, it was under the jurisdiction of the IEEPA that Trump aimed to force ByteDance’s sale of TikTok. However, the IEEPA specifically prohibits the President from using the Act to limit access to foreign materials covered by the First Amendment, including personal communications technology, which TikTok argued included its social media platform. [5] Additionally, TikTok claimed Trump’s executive order violated its 5th Amendment right to due process. [6]

TikTok’s lawsuit against the Trump administration never came to fruition, however, as on September 27, the day before the first stages of the ban were set to begin, a federal judge granted the platform an injunction against the presidential order calling for its sale. [7] In his decision, Judge Carl Nichols of the United States District Court for the District of Columbia concluded that the TikTok’s lawsuit against Trump was likely to succeed on the merits, given the IEEPA’s prohibition on executive action against communications technology. Judge Nichols also appeared to agree with TikTok’s 5th Amendment argument, citing the executive order’s potential to “erod[e] TikTok’s competitive position.” [8] Then, in June of 2021, newly elected President Biden revoked the original Trump executive order seeking to ban TikTok. [9] Consequently, TikTok v. Trump was dismissed. [10]

2. Congress Intervenes

Despite President Biden’s intervention to end his predecessor’s move to force TikTok’s sale to an American company, Biden did not rule out future action to restrict the app’s presence in the United States. For instance, in December of 2022, Biden signed the No TikTok on Government Devices Act, included in that year’s omnibus budget bill, which prohibits the use of TikTok on government devices. [11] Many state governments have since adopted similar legislation. Additionally, throughout Biden’s presidency, numerous acts were introduced in Congress aimed at limiting social media corporations’, including TikTok’s, ability to access user data. Finally, in April of 2024, the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA) was signed by President Biden. PAFACA, similar to Trump’s 2020 executive order, seeks to ban TikTok from the U.S., unless ByteDance divests of its controlling share in the platform. [12] Again, little evidence was made available to the public regarding the security risks presented by the app, though PAFACA’s bipartisan support in both The House of Representatives and the Senate, to many Americans, suggested valid concern. According to PAFACA, if TikTok was not sold to an American owner by January 19, 2025, the app would become unavailable to users in the United States.

3. TikTok v. Garland

Only a few weeks after Congress moved to force TikTok’s divestiture from ByteDance, the company filed suit against the U.S. Government. Unlike TikTok’s case against Donald Trump, however, the platform was left with fewer avenues of dispute. In the app’s 2020 suit, TikTok argued that Trump, as President of the United States, lacked the authority to ban TikTok through executive action. However, since Congress adopted PAFACA, TikTok could no longer use that reasoning. Instead, in 2024, the platform’s central argument against its forced sale rested on Americans’ 1st Amendment rights. TikTok contended that since PAFACA constituted a de-facto ban of the app’s operations in the United States, that it worked to suppress free expression. [13]

Once it became clear that the fate of TikTok would be determined by the Supreme Court, many major civil liberties and 1st Amendment advocacy groups voiced their support for TikTok’s argument, including the American Civil Liberties Union and the Foundation for Individual Rights and Expression (FIRE). In its amici curiae brief to the Court, FIRE specifically pointed out that the government had yet to provide the public substantial evidence on the dangers TikTok posed to Americans, while also explaining that upholding legislation banning the app would counter almost 250 years historical protections for free speech. [14] However, the Supreme Court did not see eye-to-eye with outside civil liberties advocates. In a rare unanimous decision, the Court upheld PAFACA. The Court reasoned that since PAFACA only aims to regulate TikTok’s ownership, not content, that it does not violate the 1st Amendment, even if its de-facto effect is the removal of a major mode of online expression.  [15]

4. Political Football

The federal reaction to the Supreme Court’s decision broke along political lines, informed by the radically reshaped electoral dynamics of the 2024 presidential election. While PAFACA enjoyed bipartisan support when it was adopted, seemingly neither party wanted to own its outcome. The Democrats, reeling from their loss of both chambers of Congress and the Presidency, partially due to declines in support from young people, were not keen to be seen as the party that had banned TikTok, despite the fact that it was President Biden that had signed the legislation banning the app. The Republicans, on the other hand, hoping to retain their newfound Gen. Z support, as well as in recognition of the utility of TikTok as a political messaging platform, also showed little motivation to own the ban, despite the party’s hawkish posture towards China. The date of the ban’s commencement, January 19, 2025, was also awkward, being Joe Biden’s last day as President of the United States before handing the White House over to Trump’s second term. With these factors in mind, Biden made the decision to refuse to enforce the Supreme Court’s ruling on TikTok, practically (and, arguably, unconstitutionally), vetoing a law he himself had signed. Despite Biden’s assurances, TikTok did go dark for around twelve hours, only to be revived, ostensibly by President Trump, who extended PAFACA’s allowance of a 90-day extension to the law’s sell-by date in order to facilitate a sale, despite no public knowledge of a live deal. [16] As of April 2025, TikTok continues to be available in the United States.

The executive decision not to enforce rulings made by the Supreme Court is not completely unprecedented in American history. Famously, Andrew Jackson, the President of the United States from 1829-1839, is once thought to have said “John Marshall [the then Chief Justice of the Supreme Court] has made his decision, now let’s see him enforce it,” in response to the Supreme Court’s decision in Worcester v. Georgia, which sought to prevent the forced removal of the Cherokee Tribe from the state, though historians debate whether he actually used these words. [17] Yet, rebuking the authority of the Supreme Court has taken on new salience in recent years. Among American progressives, perception that the Court is unfairly slanted towards conservative opinion has made questioning the legitimacy, utility, and structure of the Supreme Court normal conversation. Additionally, even before Biden refused to enforce the Court’s decision in TikTok v. Garland, the President made a show of his disagreement with the Court on the topic of student loan debt forgiveness, though he complied with the Court in reality. [18] Today, many have pointed out President Trump’s apparent willingness to violate court decrees, especially in relation to the unprecedented levels of constitutionally dubious executive action favored by his administration. The Supreme Court’s salience in American life has grown increasingly heavy as Congress has shied away from its role as the sole federal law-making body in the United States. As long as Congress refuses to make hard decisions and relies on the Supreme Court to resolve the country’s pressing policy crises, questioning and disobeying the decisions of the Court threatens to become a common phenomenon in American political life.  

Notes:

1. TikTok Newsroom Staff. “TikTok CEO’s Show Chew’s Opening Statement.” Tik Tok Newsroom, January 31, 2024. https://newsroom.tiktok.com/en-us/opening-statement-senate-judiciary-committee-hearing.

2. Arjun, Kharpal. “U.S. is 'looking at' banning TikTok and Chinese social media apps, Pompeo says.” CNBC, July 7, 2020. https://www.cnbc.com/2020/07/07/us-looking-at-banning-tiktok-and-chinese-social-media-apps-pompeo.html. 

3. Carvajal, Nikki and Caroline Kelly. “Trump issues orders banning TikTok and WeChat from operating in 45 days if they are not sold by Chinese parent companies.” CNN, August 8, 2020. https://www.cnn.com/2020/08/06/politics/trump-executive-order-tiktok/index.html. 

4. International Emergency Economic Powers Act, 50 U.S.C. § 35 (1977).  

5. TikTok v. Trump, No. 2:20-cv-7672, U.S. District Court, Central District of California. 

6. U.S. Constitution Amend. V.  

7. Isaac, Mike and David McCabe. “TikTok Wins Reprieve from U.S. Ban.” The New York Times, September 27, 2020. https://www.nytimes.com/2020/09/27/technology/tiktok-ban-ruling-app.html/. 

8. Tik Tok v. Trump, No. 1:20-cv-02658, U.S. District Court, District of Columbia.

9. Allyn, Bobby. “Biden Drops Trump’s Ban on TikTok And WeChat –– But Will Continue The Scrutiny.” NPR, June 9, 2021. https://www.npr.org/2021/06/09/1004750274/biden-replaces-trump-bans-on-tiktok-wechat-with-order-to-scrutinize-apps. 

10. Joint Stipulation to Dismiss, Tik Tok v. Trump, No. 1:20-cv-02658, U.S. District Court, District of Columbia.

11. No TikTok on Government Devices Act, 44 U.S.C. § 3553 (2022).

12. Protecting Americans from Foreign Adversary Controlled Applications Act, 15 U.S.C. § 9901 (2024). 

13. TikTok v. Garland, 604 U.S. ___ (2025).

14. Brief for the Foundation for Individual Rights and Expression as Amicus Curiae, TikTok v. Garland, 604 U.S. ___ (2025).

15. TikTok v. Garland, 604 U.S. ___ (2025).

16. Protecting Americans from Foreign Adversary Controlled Applications Act, 15 U.S.C. § 9901 (2024). 

17. Garrison, Tim. "Worcester v. Georgia." New Georgia Encyclopedia, Feb 20, 2018. https://www.georgiaencyclopedia.org/articles/government-politics/worcester-v-georgia-1832/. 

18. Wall Street Journal Editorial Board. “Biden’s Student Loan Boast: The Supreme Court ‘Didn’t Stop Me’.” The Wall Street Journal, February 23, 2024. https://www.wsj.com/articles/joe-biden-student-debt-forgiveness-supreme-court-0c5204fe. 

Bibliography:

Allyn, Bobby. “Biden Drops Trump’s Ban on TikTok And WeChat –– But Will Continue The Scrutiny.” NPR, June 9, 2021. https://www.npr.org/2021/06/09/1004750274/biden-replaces-trump-bans-on-tiktok-wechat-with-order-to-scrutinize-apps.

Arjun, Kharpal. “U.S. is 'looking at' banning TikTok and Chinese social media apps, Pompeo says.” CNBC, July 7, 2020. https://www.cnbc.com/2020/07/07/us-looking-at-banning-tiktok-and-chinese-social-media-apps-pompeo.html.

Carvajal, Nikki and Caroline Kelly. “Trump issues orders banning TikTok and WeChat from operating in 45 days if they are not sold by Chinese parent companies.” CNN, August 8, 2020. https://www.cnn.com/2020/08/06/politics/trump-executive-order-tiktok/index.html.

Garrison, Tim. "Worcester v. Georgia." New Georgia Encyclopedia, Feb 20, 2018. https://www.georgiaencyclopedia.org/articles/government-politics/worcester-v-georgia-1832/. 

Isaac, Mike and David McCabe. “TikTok Wins Reprieve from U.S. Ban.” The New York Times, September 27, 2020. https://www.nytimes.com/2020/09/27/technology/tiktok-ban-ruling-app.html/.

TikTok Newsroom Staff. “TikTok CEO’s Show Chew’s Opening Statement.” Tik Tok Newsroom, January 31, 2024. https://newsroom.tiktok.com/en-us/opening-statement-senate-judiciary-committee-hearing.

Wall Street Journal Editorial Board. “Biden’s Student Loan Boast: The Supreme Court ‘Didn’t Stop Me’.” The Wall Street Journal, February 23, 2024. https://www.wsj.com/articles/joe-biden-student-debt-forgiveness-supreme-court-0c5204fe.