President Donald Trump is planning to sign an executive order which will end the automatic right to citizenship for children of non-citizens and illegal immigrants born in the US.
The presidents statement on Monday prompted a constitutional uproar on Twitter.
Trump claimed that the US is “the only country” that offers birthright citizenship, yet 33 other countries, including Canada, Brazil, Mexico and Argentina, do the same.
RT reports: “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,” Trump told Axios in an interview taped on Monday. “It’s ridiculous. It’s ridiculous. And it has to end.”
While Trump was ambiguous on the subject, it is likely that the children of legal immigrants who have attained US citizenship will be unaffected by the planned policy order.
In the US, birthright citizenship is guaranteed by the 14th Amendment to the Constitution, 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.” While originally drafted in 1868 to establish civil rights for freed slaves and their descendents, the amendment has been widely interpreted to grant full citizenship rights to anyone born within the US.
“It was always told to me that you needed a constitutional amendment,” Trump told Axios. “Guess what? You don’t.”
“It’s in the process. It’ll happen . . . with an executive order,” he said.
If Trump intended to press ahead with the executive order, the president would likely face a complete and total backlash.Trump’s critics immediately sounded the alarm on Twitter.
If the 14th Amendment’s guarantee of birthright citizenship could be wiped out with the stroke of Trump’s pen, the whole U.S. Constitution could be erased that way. There’s no limit to that dictatorial claim over all our rights. https://t.co/hfFfsDOAJL
— Laurence Tribe (@tribelaw) October 30, 2018
Already tested in the courts and SCOTUS reaffirmed repeatedly that its interpretation of the 14th Amendment is that anyone born in the US is a citizen regardless of their parents’ legal status. And that’s also how authors of the 14th Amendment saw it. https://t.co/Z4WAnCZi3v https://t.co/Qi2RCudZyz
— Tim O’Brien (@TimOBrien) October 30, 2018
GO BACK TO SLEEP! DON’T WATCH THE NEWS. YOUR HEAD WILL EXPLODE.
Trump now asserts the right to repeal the 14th Amendment through executive order. https://t.co/uHbVq77bxH
That’s after he tweets a massive military response to an “invasion” of Guatemalan children.
NOT. NORMAL. pic.twitter.com/KQfEL3RH0Z
— Peter Daou (@peterdaou) October 30, 2018
You can’t alter the Constitution by executive order. You want to repeal the 14th Amendment, you do it the old fashioned way: By having enough racist hacks on the Supreme Court to render the constitutional rights of people of color meaningless. https://t.co/jkXx48pCEy
— Student Loans 🍝 (@AdamSerwer) October 30, 2018
While Trump can issue an executive order on birthright citizenship, that order can then be challenged in court, and overturned if it is found unconstitutional. This was the case earlier this year and last year when the first iterations of the president’s controversial travel ban were declared unconstitutional by federal courts.
Any executive order issued by Trump would therefore have to fall within the boundaries set by the Constitution, and the Supreme Court would have to determine whether the text of the 14th Amendment actually guarantees birthright citizenship, a matter of intense debate among legal scholars.
“A proper originalist interpretation of the US Constitution, as presently written, guarantees American citizenship to those born within our borders, with only a few limited exceptions,” lawyer Dan McLaughlin wrote in a National Review column last month.
However, McLaughlin noted that one line in the Amendment – “and subject to the jurisdiction thereof” – could cause some ambiguity. If Congress were to decide that illegal immigrants are not subject to the jurisdiction of the United States, then the case could be made that the protections of the 14th Amendment do not apply to them. Indeed, at the time of the Amendment’s writing, Senator. Lyman Trumbull argued that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else,” for example, a foreign country.
Trumbull’s interpretation has been used by opponents of birthright citizenship, like legal scholar Edward J. Erler, to argue against automatic citizenship, but the text of the Constitution can be endlessly dissected and analyzed for different answers.
Some scholars have called for Congress to finally legislate on whether the children of noncitizens are subject to US jurisdiction or not, and end the debate for good.
In a Washington Post op-ed this July, former Trump administration national security official Michael Anton called for such legislation, and argued that “the notion that simply being born within the geographical limits of the United States automatically confers US citizenship is an absurdity — historically, constitutionally, philosophically and practically.”
With immigration a top priority for Republican voters, some saw the President’s statement as bluster, intended to fire up his base ahead of next week’s crucial midterm elections.