Trump Thinks He Can End Birthright Citizenship Via Executive Order–He Can’t

Image credit: Christian Science Monitor

Is there anyone out there still doubting the Trump administration has declared war on immigrants?

If so, he or she might be interested in learning about Donald Trump’s intent to sign an executive order overturning a fundamental constitutional amendment guaranteeing birthright citizenship.

Section one of the 14th amendment to the Constitution states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The first sentence says it all: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”

In an attempt to make America white again, the self-proclaimed “nationalist,” Donald Trump, wants to ensure children born here to non-citizen and/or undocumented immigrant parents are denied guaranteed citizenship, bowing once again to his white nationalist, racist base.

Trump told Axios:

“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits. It’s ridiculous. It’s ridiculous. And it has to end.”

This is another classic Trump lie.

We are not the only country “in the world where a person comes in and has a baby, and the baby is essentially a citizen.”

Canada, Brazil, Mexico, and over 30 other countries grant it.

But unlike his previous executive orders, this one is an overt challenge to irrefutable language, requiring more than just his signature.

The Constitution‘s framers, James Madison et. al., anticipating a potential autocrat ascending to the nation’s highest office, created a provision requiring a deliberately arduous process to prevent that hypothetical autocrat from circumventing Congress and adulterating the laws.

Jessica Silbey, law professor at Northeastern University, asserts:

“It [the 14th amendment] cannot be changed through executive order or legislation, but only by amending the Constitution.”

Former federal prosecutor, Renato Mariotti, adds:

  Trump can try to issue an executive order, but under longstanding Supreme Court precedent, it would be invalid…Perhaps he is banking on the Supreme Court to change its interpretation of the 14th Amendment to permit him to circumvent it via executive order, but that is unlikely given its clear language.”

Loyola Law School professor, Jessica Levinson, concurs:

“The president cannot executive-order his way out of the Constitution. The 14th Amendment is clear: If an individual is born in the United States, that individual is a citizen of the United States.”

And from Jed Shugerman, Fordham University law professor:

“This is not how constitutional law works. You can’t amend the 14th Amendment by an executive order.”

Vice President Mike Pence, of course, disagrees.

He is correct in his statement that the Supreme Court “has never ruled on whether or not the language of the 14th Amendment — ‘subject to the jurisdiction thereof’ — applies specifically to people who are in the country illegally.”

However, in a landmark 1898 Supreme Court case, United States v. Wong Kim Ark, the country’s highest court ruled people born in the United States are considered American citizens regardless of their parents’ immigration status.

South Carolina Republican Sen. Lindsay Graham–rumored to be interested in replacing Jeff Sessions as Attorney General–supports Trump’s executive order and even plans on introducing legislation for it.

He commented:

“Finally, a president willing to take on this absurd policy of birthright citizenship. I’ve always supported comprehensive immigration reform — and at the same time — the elimination of birthright citizenship. The United States is one of two developed countries in the world who grant citizenship based on location of birth. This policy is a magnet for illegal immigration, out of the mainstream of the developed world, and needs to come to an end.”

Any bill Sen. Graham might introduce, though, would require 60 votes to pass. Even if it were to clear both houses of Congress with Republicans’ narrow 51-49 majority, it would likely be challenged in the courts.

There are several ways to amend our Constitution–none of which are by executive order.

The first way requires two-thirds of the Senate and the House of Representatives to approve an amendment, and three-quarters of state legislatures to subsequently ratify it. All twenty-seven amendments in the Constitution exist today due to this, the only method employed since 1791.

A second method requires two-thirds of state legislatures to call for a “constitutional convention,” at which delegates would open up the Constitution and pull out provisions they feel we no longer need–and insert ones they feel we do.

Nothing is impossible, but it’s extremely unlikely Trump will succeed in this recent scheme.

Chalk it up to just more bloviating.

Image credit: Christian Science Monitor

Ted Millar is poet and teacher. His poetry has been in featured in myriad literary journals, including Caesura, Circle Show, Cactus Heart, Third Wednesday, and The Voices Project. He is also a contributor to Liberal Nation Rising.