Donald Trump’s executive order on flag burning is too clever by half. Trump’s instinct is both correct and widely popular: Burning the flag is both an act of provocation and a statement of enmity to the nation and system it stands for. Allowing flag-burning to remain legal serves only two arguable purposes: to demonstrate our national tolerance for dissent, and to enable people to publicly identify themselves as enemies of the country. We don’t think the national conversation would suffer if dissenters were unable to light our flag on fire.

That said, it is not against the law. The First Amendment protects a lot of socially unuseful speech and protest, and the Supreme Court’s 5–4 decision in Texas v. Johnson (1989), striking down a law against flag-burning, is the law and likely to remain the law for the foreseeable future. Constitutionality aside, Trump also can’t make a new federal law against flag-burning without Congress.

Trump’s workaround is to state that flag-burning won’t be prosecuted as such, but that prosecutors should charge flag-burners whenever possible for other offenses they may commit in the course of protests. But this is the very definition of selective prosecution if the charges are not ones that would have been brought anyway — and the federal executive branch is now putting in writing that this is its intention. It may take some time for anyone to be prosecuted in a case that would result in a challenge to this, but once such a prosecution is initiated, the Justice Department will be hard-pressed to get a conviction.

The proper course, if the goal is to ban flag-burning, is to propose a constitutional amendment. Such an amendment last failed in the Senate by one vote in 2006, and it would still be popular — if more controversial with Democrats when associated with Trump. But a debate on an amendment would be more productive than this executive order.