Mother Jones

06/27/2025

Justice Jackson, in her own dissent, digs into the profound threat this decision poses to the rule of law by, in effect, exempting the president from following it. Whether or not this decision has the practical effect of denying birthright citizenship to children born on US soil, Jackson warns, this decision has altered our system of government and, sooner or later, may destroy it.

“Disaster looms,” she warns. If a court cannot command the executive to follow the law, then there exists “a zone of lawlessness within which the Executive has the prerogative to take or leave the law as it wishes, and where individuals who would otherwise be entitled to the law’s protection become subject to the Executive’s whims instead.” This is, of course, not how democracy works. But it is, now, the law of the land in the United States.

Jackson’s dissent is meant to explain the precise ways the majority’s decision undoes our system of government, by pulling back from the power-sharing structure the Framers crafted and replacing it with the monarchical system they had just cast off. The Framers hoped that the ambitions of each branch would cause them to zealously check the excesses of the others. But, under Trump, the other branches channel their ambitions not through their own power, but fealty to his.

“The Court’s decision is nothing less than an open invitation for the Government to bypass the Constitution.”

“In this country, the Executive does not stand above or outside of the law,” Jackson writes. But her dissent is also a warning that this is becoming less true. A year ago, the Republican appointees exempted the president from the dictates of criminal law. Now, it suggests that even if a court finds the administration’s actions likely illegal or unconstitutional, it can continue to enforce them against those who haven’t challenged the action in court, either individually or as part of a class action. As a result, the president rises beyond the bounds of the law, and individuals slip from the embrace of its protection.

But as the old saying implies, if first they come for those without lawyers, then they will come for the rest of us. A partial king will seek to become a complete ruler. “I have no doubt that, if judges must allow the Executive to act unlawfully in some circumstances, as the Court concludes today, executive lawlessness will flourish, and from there, it is not difficult to predict how this all ends,” Jackson wrote. “Eventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more.”

The nation’s highest court could have said no to this eventuality. But today, it said yes.