The Effect of Supreme Court Decisions on Illinois Gun Policy

By: Yitong Zhang

Edited by: Isabella Canales and Anisha Iqbal

The US exhibits an unusually high rate of gun mortality, with over 46,000 firearm-related deaths reported in 2023.[1] Compared to other high-income countries, US citizens are 11.4 times more likely to die in a gun homicide.[2] In light of this “public health epidemic,” firearm legislation has become an increasingly contested topic in the United States.[3] Different groups, often divided on partisan lines, hold varying opinions on how best to promote public safety in the wake of increasing gun violence. In the legal realm, these arguments hinge on differing interpretations of the Second Amendment right to bear arms. The Supreme Court has increasingly weighed in, deciding several key cases regarding Second Amendment rights in the past 20 years. Focusing on recent Illinois laws as a case study, I explore how Supreme Court rulings affect the creation of local gun legislation, in many cases limiting the scope of what local legislatures can legally enact.

Legal Context: Second Amendment Supreme Court Cases

The Second Amendment of the United States Constitution establishes “the Right of the people to keep and bear Arms.”[4] Interpretations of this text have shifted greatly over time, especially as changes in modern technology bring up challenging questions about regulation and implementation. Lawmakers and judges must attempt to reconcile the historical context of the original text with the very different technological reality of today, following the guidance of the Supreme Court as the country’s highest court.

In District of Columbia v. Heller, decided in 2008, the Court established that the individual right to possess a firearm is protected by the Second Amendment.[5] The 2010 case McDonald v. City of Chicago later extended this protection of gun rights, applying it to the states through the incorporation doctrine of the 14th Amendment.[6]

The Court again deliberated the scope of the Second Amendment in Caetano v. Massachusetts. In accordance with the Heller ruling, which established that the Second Amendment “extends… to… arms… that were not in existence at the time of the founding,” stun guns and other modern weapons count as protected arms.[7] 6 years later, in New York State Rifle and Pistol Assoc. V. Bruen (2022), the Court ruled that any newly established firearm restrictions must be consistent with historical firearm laws, or else they constitute a breach of equal protection under the Second Amendment.[8]

Most recently, in United States v. Rahimi (2024) the Court upheld laws restricting gun ownership rights of people convicted of domestic violence, qualifying the Second Amendment as fundamental but “not unlimited.”[9] The written opinions revealed the confusion caused by the Bruen ruling, which established unclear guidelines that feel incongruous with the current times. In her concurring opinion, Justice Sotomayor notes that continuing to use historical principles from time periods that discounted women and people of color contradicts modern ideals of American democracy. Overall, the Supreme Court has inconsistently resolved the contradiction between historical and modern levels of scrutiny. While the Bruen ruling employed an originalist framework that examined the Second Amendment at the time it was ratified, Heller takes the opposite approach. Instead of restricting Second Amendment protections to situations referred to in the original context, it extended the scope to non-traditional weapons. The Court’s reasoning contains many discrepancies between cases decided less than a decade apart, leaving behind unclear guidelines for the future.

Karina’s Law

The Rahimi ruling established guidelines for the implementation of Karina’s Law, an Illinois law passed in January 2025. Named after Karina Gonzalez, who filed for an order of protection from her husband 48 hours before he shot and killed her and her daughter, it requires law enforcement to confiscate firearms from anyone with an order of protection against them, within a time frame of 96 hours.[10] State Senator Celina Villanueva, the sponsor of the bill, claims that it “closes a dangerous loophole” previously rendering it unclear who was responsible for firearm removal.[11]

While the bill garnered bipartisan support in the Illinois General Assembly, opponents stated concerns that it violates the right to due process, claiming that the preemptive removal of a gun assumes guilt before conviction. However, State Attorney Jamie Mosser expressed confidence that any legal challenge against the law would fail, as it only permits temporary firearm removals.[12]

Protect Illinois Communities Act

The 2023 Protect Illinois Communities Act, introduced by Governor Pritzker following the 2022 mass shooting in Highland Park, presented a much more controversial piece of legislation. Similar to local laws previously enacted in Chicago, it banned the sale of specific assault weapons and attachments.[13] It also increased regulation on existing assault weapons, requiring current owners to file an endorsement affidavit using their Firearm Owner’s Identification Card account. Section 2 of the law listed a number of exemptions, including several categories of federal employees in addition to various classifications of non-residents. The Act immediately faced lawsuits on both the local and federal levels.

In Illinois, the Circuit Court of Macon County entered a declaratory judgment for the bill, citing a prima facie violation of equal protection because the bill singled out categories of individuals exempt from the ban. The state appealed to the Illinois Supreme Court, which reversed and upheld the ban.

On the national level, federal District Court Judge Stephen Glynn issued a temporary injunction to halt the implementation of the bill, which was then put on hold by the 7th Circuit Court. A 3-judge appeals panel from the Circuit Court reviewed and upheld the ban, recognizing that restrictions imposed on other amendments have historically been sustained. The case was appealed to the Supreme Court, which denied certiorari and sent it back to the District Judge for trial. 18 months after the original proceedings, Judge Glynn imposed a permanent injunction on the bill, with a stay for 30 days to allow appeals. The Illinois Attorney General subsequently appealed the case to the 7th Circuit Court, which decided to allow enforcement of the law to continue while it deliberates on a final judgment.

As of now, the Protect Illinois Communities Act remains in effect, limiting the sale and possession of assault weapons in the state. While it has survived many legal challenges, its future stays uncertain. The 7th Circuit Court will likely uphold the ban a second time, but gun rights lobbyists would almost certainly appeal once again to the Supreme Court. If the Court decides to grant certiorari, it would definitively decide the fate of the bill, with wide-ranging implications for future gun legislation. The Court seems poised to look disfavorably upon the ban, as it has recently trended towards expanding the right of individual gun ownership within the country.

Conclusion

These two recent pieces of legislation demonstrate the current political climate concerning gun legislation. Even in Illinois, a very liberal state with much lower rates of gun ownership than the national average, laws restricting access to guns face great legal resistance.[14] Gun rights advocates have started to rely on a sympathetic Supreme Court, whose conservative majority has consistently expanded the reach of Second Amendment rights in the modern era. However, the Court has recognized certain restrictions on gun rights, leaving room for less ambitious government regulations to pass. The success of Karina’s Bill illustrates the potential for more narrowly tailored pieces of legislation, especially when they appeal to universal moral principles as opposed to ideological values.

Notes:

1. Gramlich, John. “What the Data Says about Gun Deaths in the U.S.” Pew Research Center, Pew Research Center, 5 Mar. 2025, www.pewresearch.org/short-reads/2025/03/05/what-the-data-says-about-gun-deaths-in-the-us/. 

2. Grinshteyn, Erin, and David Hemenway. “Violent Death Rates in the US Compared to Those of the Other High-Income Countries, 2015.” Preventive Medicine 123 (June 2019): 20–26. https://doi.org/10.1016/j.ypmed.2019.02.026.

3. “The Public Health Approach to Prevent Gun Violence.” Center for Gun Violence Solutions. Accessed February 9, 2025. https://publichealth.jhu.edu/center-for-gun-violence-solutions/research-reports/the-public-health-approach-to-prevent-gun-violence.

4. U.S. Const. amend. II

5. District of Columbia et al. v. Heller, 554 U.S. 570 (2008).

6. McDonald v. Chicago, 561 U.S. 742 (2010).

7. Caetano v. Massachusetts, 577 U. S. 411 (2016).

8. New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022).

9. Karina’s Law, H.B. 4144, 103rd Illinois General Assembly.

10. “Villanueva Passes Karina’s Law to Protect Domestic Violence Survivors.” ISDC, January 6, 2025. https://www.illinoissenatedemocrats.com/caucus-news/64-senator-celina-villanueva-news/6001-villanueva-passes-karinas-law-to-protect-domestic-violence-survivors.

11. Szalinski, Ben. “Illinois Lawmakers Advance ‘Karina’s Bill’ to Remove Guns from Domestic Violence Situations.” ABC7 Chicago, January 9, 2025. https://abc7chicago.com/post/illinois-gun-laws-lawmakers-advance-karinas-bill-remove-guns-domestic-violence-situations/15774601/.

12. Protect Illinois Communities Act, Public Act 102-1116 (2023).

13. McCracken, Heather. Gun ownership in America | rand. Accessed February 10, 2025. https://www.rand.org/research/gun-policy/gun-ownership.html.

Bibliography:

District of Columbia et al. v. Heller, 554 U.S. 570 “Federal Appeals Panel Upholds Illinois Assault Weapons Ban.” CBS News. Accessed February 9, 2025. https://www.cbsnews.com/chicago/news/federal-appeals-panel-upholds-illinois-assault-weapons-ban/.

Feurer, Todd, and Darius Johnson. “Federal Judge Rules Illinois Assault Weapons Ban Unconstitutional.” CBS News, November 8, 2024. https://www.cbsnews.com/chicago/news/illinois-assault-weapons-ban-ruled-unconstitutional/.

Gramlich, John. “What the Data Says about Gun Deaths in the U.S.” Pew Research Center, Pew Research Center, 5 Mar. 2025, www.pewresearch.org/short-reads/2025/03/05/what-the-data-says-about-gun-deaths-in-the-us/. 

Grinshteyn, Erin, and David Hemenway. “Violent Death Rates in the US Compared to Those of the Other High-Income Countries, 2015.” Preventive Medicine 123 (June 2019): 20–26. https://doi.org/10.1016/j.ypmed.2019.02.026.

Gun policy in America: An overview | rand. Accessed February 10, 2025. https://www.rand.org/research/gun-policy/key-findings/gun-policy-in-america.html.

Karina’s Law, H.B. 4144, 103rd Illinois General AssemblyMcCracken, Heather. Gun ownership in America | rand. Accessed February 10, 2025. https://www.rand.org/research/gun-policy/gun-ownership.html.

McDonald v. Chicago, 561 U.S. 742 . 2009

New York State Rifle & Pistol Association Inc. v. Bruen, 597 U.S. 1

Protect Illinois Communities Act, Public Act 102-1116 (2023)

“The Public Health Approach to Prevent Gun Violence.” Center for Gun Violence Solutions. Accessed February 9, 2025. https://publichealth.jhu.edu/center-for-gun-violence-solutions/research-reports/the-public-health-approach-to-prevent-gun-violence.

Szalinski, Ben. “Illinois Lawmakers Advance ‘Karina’s Bill’ to Remove Guns from Domestic Violence Situations.” ABC7 Chicago, January 9, 2025. https://abc7chicago.com/post/illinois-gun-laws-lawmakers-advance-karinas-bill-remove-guns-domestic-violence-situations/15774601/.

United States v. Rahimi, 602 U.S.

“Villanueva Passes Karina’s Law to Protect Domestic Violence Survivors.” ISDC, January 6, 2025. https://www.illinoissenatedemocrats.com/caucus-news/64-senator-celina-villanueva-news/6001-villanueva-passes-karinas-law-to-protect-domestic-violence-survivors.

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