On Aug. 25, President Donald Trump announced an executive order aimed at “Prosecuting Burning of the American Flag.”

The administration really wanted us to believe that Trump was making flag burning illegal, but Trump's order doesn’t actually do that. However, it remains problematic because of what it says about our current state of politics.

I despise the burning of the American flag, but that doesn’t mean I think it ought to be illegal. I do think it is a form of protected protest speech, as the Supreme Court has affirmed in the past.

Americans should still worry that Trump is eager to act like he is going against the courts, and should be concerned that nobody in the GOP seems willing to check him on that fact.

Trump's order lets him pretend to criminalize flag burning

Trump's order is titled “Prosecuting Burning of the American Flag.” That would be unconstitutional if that's what the order actually did. Instead, the order directs the attorney general to “prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country.”

It also says that if an “instance of American Flag desecration may violate an applicable State or local law, such as open burning restrictions, disorderly conduct laws, or destruction of property laws, the agency shall refer the matter to the appropriate State or local authority for potential action.”

For one example, a man has already been arrested for burning a flag, under the reasoning that it is illegal to burn anything in a public park. Obviously, the administration just wants to arrest people burning flags and will look for accompanying laws to do it.

Even more worrying is the order's insistence that "the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to 'fighting words' is constitutionally protected." Once again, Trump is attaching the burning of a flag to another crime: incitement. But in this case, the incitement qualification becomes vague.

It's a problem that Trump believes (or at least claims to) that he can override a Supreme Court precedent through an executive order. The title of that order isn’t a one-off either. Trump said that “people who burn the American flag should go to jail for one year” when discussing the order.

Will Republicans finally do something to stop Trump?

Even worse is the fact that most in the GOP are just playing along, or at least not outright calling the administration out. If the GOP wants to allow Trump to pretend he is violating the Constitution to get a political win, they should also stop pretending to be a governing body that actually cares about the Constitution. Otherwise, they wouldn’t be so eager to pretend like they are trampling over it.

Swearing an oath to the Constitution, as the president, vice president, and members of Congress all do, requires you to uphold those provisions, even if you disagree with them. Trump has clearly been in violation of his oath in many ways throughout his presidency. But it's more bizarre that he wants to pretend as if he isn't violating the Constitution.

That a limited number of Republicans have been willing to call out the president on this, and the fact that everyone has just normalized Trump’s anti-constitutional behavior, marks a decay of the Republican party and its continued move away from conservative values.

It should worry us all that Trump is searching for ways to sidestep the Constitution, instead of searching for how best to uphold it.

Dace Potas is an opinion columnist for USA TODAY and a graduate of DePaul University with a degree in political science.

This article originally appeared on USA TODAY: Trump's flag burning order is unconstitutional. That's not the problem. | Opinion

Reporting by Dace Potas, USA TODAY / USA TODAY

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