A few weeks after winning the 2016 presidential election, Donald Trump said he was prepared to take American citizenship away from those who burn the American flag, insisting there had to be meaningful “consequences” for such protests, even if the U.S. Supreme Court has already ruled that this is protected speech under the First Amendment.
Once in office, the president largely forgot about the issue. In 2019, the Republican briefly endorsed a constitutional amendment prohibiting Americans from being able to desecrate a flag. And a year later, Trump said he liked the idea of a “very powerful flag-burning statute,” but for the most part, this was a White House afterthought.
In his second term, however, he has apparently decided to take action — or something resembling action. NBC News reported:
Trump signed [an] executive order on Monday aimed at prosecuting people who ‘desecrate’ the American flag, a third fact sheet said. That order, first reported by Fox News, directs Bondi to ‘vigorously prosecute those who violate our laws in ways that involve desecrating the flag, and to pursue litigation to clarify the scope of First Amendment in this area.’
“What the penalty is going to be, if you burn a flag, you get one year in jail — no early exits, no nothing,” the president said, adding: “You will see flag burning stop immediately.”
Trump signs an executive order: "If you burn a flag, you get one year in jail."
— Aaron Rupar (@atrupar.com) 2025-08-25T15:11:52.954Z
At this point, we could have a conversation about the fact that flag burning is not exactly common in the United States, making this a solution to a problem that doesn’t exist in any meaningful way. We could also talk at some length about Trump’s interest in protecting a symbol of American freedom, even while he adopts an authoritarian agenda that undermines American freedom.
For that matter, there’s obviously room for a spirited conversation about free speech, the First Amendment, the Supreme Court’s judgement on the underlying question and even the failed congressional efforts to amend the Constitution.
But as important as all of these angles are, what I find especially notable in the aftermath of Trump’s latest efforts is his hostility to how governing in the United States works. In this country, whether Trump likes it or not, a presidential executive order cannot override a Supreme Court ruling. In this country, whether Trump likes it or not, a president cannot create new criminal statutes — measures that would literally imprison Americans — without Congress. As The New York Times’ Jamelle Bouie wrote in response to the Republican’s new order, “He literally thinks he is a king. … This entire media blitz for when he signs executive orders is meant to create the impression that they are royal decrees.” To the extent that the administration tries to implement this policy, litigation would be inevitable. Whether Trump assumes that the far-right high court would rule differently on the underlying issue than it did 35 years ago is unclear. Watch this space.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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