Constitutional Law

Trump says he will sign order ending birthright citizenship for some; would it be constitutional?

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President Donald Trump./Shealah Craighead via White House and Wikimedia Commons.

Updated: President Donald Trump says he will sign an executive order ending citizenship for children born in the United States to noncitizens and unauthorized immigrants.

Trump told Axios he has the power to make the change. “It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump said.

When the interviewer replied that Trump’s assertion is very much in dispute, Trump said: “You can definitely do it with an act of Congress. But now they’re saying I can do it just with an executive order.”

Trump added that the executive order “is in the process” and “it’ll happen.” The New York Times and the Washington Post also have coverage.

“The president cannot erase the Constitution with an executive order, and the 14th Amendment’s citizenship guarantee is clear,” Omar Jadwat, director of the Immigrants’ Rights Project of the American Civil Liberties Union responded in a press release. “This is a transparent and blatantly unconstitutional attempt to sow division and fan the flames of anti-immigrant hatred in the days ahead of the midterms.”

At issue is the citizenship clause of 14th Amendment, which reads: “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.”

Most constitutional scholars say an executive order removing birthright citizenship would be unconstitutional. In a roundup of 11 legal experts conducted by Vox, all were in agreement that it could not be accomplished by executive order.

“The language cannot be amended except through the formal process of constitutional amendment laid out in Article V. If the president were to rely on an executive order reinterpreting birthright citizenship in order to withhold some government service or benefit for which any ‘citizen’ is eligible, he would be acting unlawfully,” Peter Shane, a professor at the Michael E. Moritz College of Law at Ohio State University told Vox.

Shane also pointed to an article in the Green Bag by Judge James C. Ho, appointed by Trump to the 5th U.S. Circuit Court of Appeals at New Orleans.

“Birthright citizenship is guaranteed by the 14th Amendment,” Ho wrote in the 2006 article. “That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”

However, Susan Low Bloch, a professor of constitutional law at Georgetown Law, told Vox that while it is indisputable that the president can’t change the Constitution through executive order, the question of whether the 14th Amendment must apply to children born to undocumented immigrant parents is less settled.

“The 14th Amendment is clear that someone born in the U.S. is an American citizen, at least if the mother is here legally,” Bloch said. “There is some debate about whether that is true for a baby born to someone who is not legally here. Most people think the status of the mother is not relevant, but that is still debatable.”

Some conservatives have advanced that argument. The Washington Post points to an op-ed in the newspaper, written by former national security official Michael Anton, who says the 14th Amendment was written to address the rights of former slaves, and it should apply only to children born in the United States to lawful permanent residents.

According to Anton, scholars have wrongly argued that “subject to the jurisdiction” simply means that foreign visitors are “subject to American law.” In Anton’s view, the clause was added to separate those who are owed citizenship, such as slaves, and those who aren’t, such as the children of immigrants who come here without authorization.

Anton acknowledges the argument that the U.S. Supreme Court settled the issue in 1898 in United States v. Wong Kim Ark. In that case, the court ruled on behalf of a Chinese man born in San Francisco who was not allowed back into the United States after he visited his parents in China. But Anton says the court’s ruling applied only to children of U.S. residents who are in the country legally.

One way to end birthright citizenship, Anton argues, is for Congress to pass legislation to clarify that the children of noncitizens are not subject to the jurisdiction of the United States, making them noncitizens under the 14th Amendment. Another, Anton said, is for Trump to sign an executive order telling federal agencies that the children of noncitizens are not citizens.

Aziz Huq, a professor at the University of Chicago Law School, called Anton’s arguments “strikingly weak even on their own terms” in a separate column for Vox and said Anton’s reading of the 14th Amendment did not make “lexical or historical sense.”

“If the 14th Amendment’s birthright citizenship was to have had its intended (and, in fact, historically observed) effect, it cannot exclude the children of the undocumented,” Huq wrote.

Steven G. Calabresi, co-founder of the Federalist Society who teaches constitutional law at Northwestern University’s law school, made a similar argument in an editorial for Time that he co-wrote with Yale Law School professor Akhil Reed Amar.

The citizenship clause of the 14th Amendment “resoundingly affirms that constitutional birthright citizenship does not depend on the immigration status of one’s biological parents,” Calabresi and Amar wrote. “Anyone born in America under the American flag is a citizen, even if his parents are not citizens and indeed even if his parents are not here legally.”

After news coverage of Trump’s plans, Sen. Lindsey Graham, R-S.C., announced in a series of tweets that he will introduce legislation to end birthright citizenship, the Hill reports. Graham said his bill will be “along the same lines” as Trump’s proposed executive order.

In a Tuesday interview with WVLK quoted by Business Insider, Republican House Majority Leader Paul Ryan of Wisconsin opposed Trump’s plan to issue the executive order.

“We didn’t like it when Obama tried changing immigration laws via executive action, and obviously as conservatives we believe in the Constitution,” Ryan said. “As a conservative, I’m a believer in following the plain text of the Constitution, and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process.”

On Wednesday, Trump tweeted that Ryan “should be focusing on holding the Majority rather than giving his opinions on birthright citizenship,” and told reporters, “I’d rather do it through Congress because that’s permanent, but we can certainly do it through–I really (believe) we can do it through executive order,” CNN reports.

Story updated at 11:28 a.m. on Oct. 30 to report on Graham’s planned legislation, and updated at 7:41 p.m. on Nov. 1 to add legal commentary and follow-up coverage.

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