▶ Ex­perts scep­ti­cal that Pres­i­dent’s pro­posal would pass through courts

The National - News - - NEWS WORLD - JOYCE KARAM The Na­tional

A week be­fore the US midterm elec­tions, Pres­i­dent Don­ald Trump took an­other hawk­ish line on im­mi­gra­tion by promis­ing an ex­ec­u­tive or­der that would end birthright, which grants any­one born on Amer­i­can soil a US cit­i­zen­ship.

Mr Trump re­newed his cam­paign prom­ise to abol­ish the cit­i­zen­ship right to the web­site Ax­ios, hours af­ter an­nounc­ing 5,200 US troops would be sent to the bor­der with Mex­ico.

“It was al­ways told to me that you needed a con­sti­tu­tional amend­ment. Guess what? You don’t,” he said.

Mr Trump said that the US was “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. It’s ridicu­lous. And it has to end.”

Poli­tifact said there were at least 30 coun­tries that grant birthright cit­i­zen­ship, among them Canada, Brazil and Ar­gentina.

But Mr Trump’s plans for an ex­ec­u­tive or­der trig­gered a le­gal de­bate about such a prece­dent, one that would undo the 14th Amend­ment to the Con­sti­tu­tion from 1868.

It reads: “All per­sons born or nat­u­ralised in the United States, and sub­ject to the ju­ris­dic­tion thereof, are cit­i­zens of the United States and of the State wherein they re­side.”

It was de­signed to grant US cit­i­zen­ship to the sons and daugh­ters of the black pop­u­la­tion that was brought in dur­ing slav­ery.

But since then il­le­gal im­mi­grants or visi­tors on tourist visas have used the law to ob­tain cit­i­zen­ship for their chil­dren born on US soil.

That has driven an out­cry within con­ser­va­tive cir­cles call­ing for the pres­i­dent to strike down the amend­ment.

Le­gal ex­perts say that is eas­ier said than done. They ar­gue that even with an ex­ec­u­tive or­der from Mr Trump, abol­ish­ing the amend­ment will prob­a­bly be blocked le­gal by fed­eral courts or the US Supreme Court.

Paul Rosen­zweig, a for­mer deputy as­sis­tant sec­re­tary for pol­icy at the Depart­ment of Home­land Se­cu­rity, said Mr Trump’s state­ments “makes clear that the US Pres­i­dent ei­ther doesn’t un­der­stand the law or doesn’t care what it says”.

Mr Rosen­zweig told that the de­bate about the 14th Amend­ment “ex­plic­itly con­sid­ered this is­sue and opted for birthright cit­i­zen­ship”.

“The Supreme Court has con­sid­ered the is­sue and said that birthright cit­i­zen­ship is re­quired con­sti­tu­tion­ally,” he said.

“One can de­bate whether or not it is a good pol­icy, but at­tempt­ing to over­turn a Supreme Court rul­ing by ex­ec­u­tive or­der is ei­ther ig­no­rant or au­thor­i­tar­ian.

“Un­less the Supreme Court in­tends to over­rule prece­dent that is more than 100 years old, the or­der will be a nul­lity.”

Matthew Kolken, a US im­mi­gra­tion lawyer, said that even Mr Trump’s newly ap­pointed Supreme Court Jus­tices Neil Gor­such and Brett Ka­vanaugh would vote against his ex­ec­u­tive or­der.

“Zero chance” he tweeted about the court’s odds to abol­ish birthright cit­i­zen­ship.

But Mr Trump’s plan has en­thu­si­as­tic sup­port­ers within the Repub­li­can Party.

For­mer White House of­fi­cial Michael An­ton ar­gued in The Wash­ing­ton Post last July that the amend­ment was be­ing mis­read.

Mr An­ton re­ferred to court rul­ings later that “only chil­dren of le­gal res­i­dents are cit­i­zens” and that “Congress could clar­ify leg­isla­tively that the chil­dren of non-cit­i­zens are not sub­ject to the ju­ris­dic­tion of the US, and thus not cit­i­zens un­der the 14th Amend­ment”.

“Why shouldn’t the pres­i­dent act to de­fend the clear mean­ing of the 14th Amend­ment?” he asked.

Daniel Horowitz of The Con­ser­va­tive Re­view wrote in 2015 that Congress had ple­nary power over nat­u­ral­i­sa­tion.

“The no­tion that il­le­gal im­mi­grants can uni­lat­er­ally de­clare cit­i­zen­ship for their kids against the will of peo­ple and the laws duly passed by the peo­ple’s rep­re­sen­ta­tives – and that those rep­re­sen­ta­tives would lack a sin­gle re­course to stop it even prospec­tively – vi­o­lates the very essence of con­sent-based cit­i­zen­ship,” Mr Horowitz said.

If Mr Trump signed such an or­der and a law­suit is filed by a state, Mr Horowitz said that “judges faith­ful to their oaths will have no choice but to agree with him”.

But Ken Gude, a le­gal fel­low at The Cen­tre for Amer­i­can Progress, said that such a path would not stand up to le­gal scru­tiny.

Birthright cit­i­zen­ship, Mr Gude told The Na­tional, “is in both the Con­sti­tu­tion and statute”.

“He can’t legally do it. If he tries it will be chal­lenged,” Mr Gude said.

“If he does it, it will be ex­actly the kind of abuse of power that the Framers be­lieved was an im­peach­able of­fence.

“We are en­ter­ing Or­wellian ter­ri­tory if Repub­li­can judges claim that ‘all per­sons born’ does not mean all per­sons born.”

Trump’s prom­ise to change cit­i­zen­ship rules by ex­ec­u­tive or­der would undo the 14th Amend­ment of the US Con­sti­tu­tion


A new group of mi­grants bound for the US bor­der wade across the Suchi­ate River, the bor­der be­tween Gu­atemala and Mex­ico

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