Trump: Order to zero in on birthright citizenship
President Donald Trump said he was preparing an executive order that would nullify the long-accepted constitutional guarantee of birthright citizenship in the United States.
“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 during an interview that was released in part on Tuesday. “It’s ridiculous. It’s ridiculous. And it has to end.”
In fact, at least 30 other countries, including Canada, Mexico and many others in the Western Hemisphere, grant automatic birthright citizenship, according to a study by the Center for Immigration Studies, an organization that supports restricting immigration.
Trump’s comments to Axios were cheered Tuesday by some fellow Republicans, including Sen. Lindsey Graham, R-S.C., who has long sought to end birthright citizenship.
“This policy is a magnet for illegal immigration, out
of the mainstream of the developed world, and needs to come to an end,” Graham said, adding that he would introduce legislation toward the same end.
But Trump’s plan also met with swift push-back from some in his own party Tuesday. House Speaker Paul Ryan, R-Wis., who is retiring, said in an interview that the president “obviously” cannot eviscerate birthright citizenship by executive order.
“You obviously cannot do that,” Ryan told WVLK, a radio station in Lexington, Ky. “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.”
Ryan compared the idea of doing so to Barack Obama’s 2012 action to grant work permits and deportation reprieves to some people brought illegally to the United States as children, which Republicans, including Trump, protested as a naked abuse of presidential power.
House Minority Leader Nancy Pelosi, D-Calif., called Trump’s promised move an attempt to divert attention from health care, which Democrats have sought to make the leading issue of the election.
“President Trump’s new claim he can unilaterally end the Constitution’s guarantee of citizenship shows Republicans’ spiraling desperation to distract from their assault on Medicare, Medicaid and people with pre-existing conditions,” she said in statement.
Doing away with birthright citizenship for the children of migrants in the country illegally was an idea Trump pitched as a presidential candidate, but there is no clear indication that he would be able to do so unilaterally, and attempting to would be likely to prompt legal challenges.
“We all cherish the language of the 14th Amendment, but the Supreme Court of the United States has never ruled on whether the language of the 14th Amendment — ‘subject to the jurisdiction thereof’ — applies specifically to people who are in the country illegally,” Vice President Mike Pence told Politico in an interview Tuesday, several hours after Trump’s comments were reported.
The citizenship clause of
the 14th Amendment 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.”
Legal scholars have widely interpreted that to mean that anyone born on American soil automatically becomes a natural-born citizen.
The amendment was passed by Congress in 1866 during the period of Reconstruction after the Civil War. It was ratified in 1868 by three-fourths of the states. By extending citizenship to those born in the U.S., the amendment nullified an 1857 Supreme Court decision — Dred Scott v. Sandford — which ruled that those descended from slaves could not be citizens.
Amendments to the Constitution cannot be overridden by presidential action — they can be changed or undone only by overwhelming majorities in Congress or the states, with a two-thirds vote of both houses of Congress or through a constitutional convention called for by twothirds of state legislatures.
Some conservatives have long made the argument that the 14th Amendment was meant to apply only to citizens and legal permanent residents, not migrants who are present in the country without authorization. In an opinion piece in The Washington Post this year, Michael Anton, a former spokesman for Trump’s National Security Council, said birthright citizenship was based on a misreading of the amendment, and of an 1898 Supreme Court ruling that he argued pertained only to the children of legal residents.
“The notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity — historically, constitutionally, philosophically and practically,” Anton wrote in July. “An executive order could specify to federal agencies that the children of noncitizens are not citizens.”
Trump told Axios that while he initially believed he needed a constitutional amendment or action by Congress
to make the change, the White House counsel’s office has advised him otherwise.
“Now they’re saying I can do it just with an executive order,” Trump said.
The White House did not immediately respond to requests for clarification of the legal grounds the president’s lawyers have given him for validating such a move.
His discussion of the idea comes after the administration announced it was sending more than 5,000 active-duty troops to the southern border.
The most cited Supreme Court decision on the subject is the 1898 case United States v. Wong Kim Ark. The court held that a child born to Chinese immigrants who were legal residents was a birthright U.S. citizen under the 14th Amendment.
Related was the 1982 case Plyler v. Doe, which held that denying children in the country illegally admission to public schools would violate the 14th Amendment’s equal protection clause.
Justice William Brennan, writing for the majority in the 5-to-4 decision, noted language from the Wong Kim Ark ruling.
He said that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”
At least 30 nations grant citizenship to anyone born within their borders, including Canada, Mexico, Brazil, Argentina and most other countries in Central and South America.
The United States and Canada are the only two “developed” countries, as defined by the International Monetary Fund, that have unrestricted birthright citizenship laws.
Although most European countries do not offer automatic citizenship at birth to anyone born there, many of them make it easy for those children to later obtain citizenship.
Information for this article was contributed by Julie Hirschfeld Davis of The New York Times; by John Wagner, Robert Barnes, Scott Clement, Seung Min Kim, Sean Sullivan, Amanda Erickson and Matt Zapotosky of The Washington Post; and by Laurie Kellman, Catherine Lucey, Jill Colvin, Deb Riechmann, Colleen Long, Mark Sherman, Lisa Mascaro and Zeke Miller of The Associated Press.