Trump targets birthright citizenship

Legal scholars say executive order would violate the Constitution, end up at high court

President Donald Trump this week promised to sign an executive order ending birthright citizenship for the children of immigrants in the United States illegally, even though most legal analysts say it would violate the Constitution and immediately be tied up in lawsuits that likely would ultimately fail.

Paul Ryan, the top House Republican, flatly rejected the idea, and even staunch proponents of ending birthright citizenship conceded that it would end up at the Supreme Court and probably be dismissed ultimately.

Trump revealed his proposal during a televised interview with the political website Axios that was previewed Tuesday. His tough talk on immigration came a week before hotly contested midterm elections that Trump has sought to frame as a battle over the issue.

He has railed against a caravan of Central American migrants making their way through southern Mexico to try to reach the U.S. border and ask for asylum, and this week ordered thousands of military troops to the border even though it is questionable what, if anything, they can do to prevent migrants from legally requesting protection. Trump told Fox News on Monday that he would hold such migrants in “tent cities”

until their deportation cases conclude, though a 1997 legal settlement prevents the prolonged detention of children and has generally forced the government to release most families.

“The caravan itself was a political winner, and he’s decided to go further and send troops there and now the suggestion of birthright citizenship — we will see if he actually does that,” said Matt Mackowiak, an Austin-based communications strategist who chairs the Travis County Republican Party. “Both sides are trying to motivate their base right now.”

Ilya Shapiro, a senior fellow in constitutional studies at the libertarian-leading Cato Institute, a think tank in Washington D.C., said the executive order was a “legal non-starter.”

“This is clearly a political balloon that Trump is floating to gin up the base before the election,” he said.

In the interview, scheduled to air as part of a new HBO series starting this weekend, Trump falsely stated that the United States is the only country in the world to grant citizenship to any children born here. In fact, more than 30 countries, including Canada and Mexico, have similar policies.

“It’s ridiculous. And it has to end,” Trump said, adding that he had discussed the measure with his legal counsel. “It was always told to me that you needed a constitutional amendment. Guess what? You don’t.”

Ryan, the House Speaker, dismissed the idea during a radio interview in Kentucky, saying it is not consistent with the 14th Amendment.

“Well you obviously cannot do that,” Ryan said. “You cannot end birthright citizenship with an executive order.”

Requires an amendment

Josh Blackman, a constitutional scholar at the South Texas College of Law in Houston, said it is uncertain whether such an executive order had even been seriously considered. Speaking in Houston last week, Trump promised a new round of tax cuts, even though Congress is out of session and few lawmakers had heard of it.

“It’s a week before the election and what Trump said may not actually be true,” Blackman said. “But even if he does it, it’s not a case of stripping people of birthright citizenship.”

Removing that right would require a constitutional amendment and a two-thirds majority vote in both the House and Senate, or a constitutional convention called by two-thirds of the state legislatures. It likely would never be retroactive, instead applying only to future births.

Because the president cannot change the law or the Constitution on his own, any executive order would have to interpret a statute on how citizenship should be understood. Trump could, for instance, offer guidance to the State Department that U.S. passports should not be granted to children born of parents living illegally here.

Any executive action “would likely be declining to give benefits to certain children of immigrants who are not here lawfully and would certainly go to the courts almost immediately,” Blackman said.

That could be the White House’s game plan, if Trump plans to follow through. A small group of legal scholars argue the clause in the 14th Amendment that grants citizenship to all those born in the United States and “subject to the jurisdiction thereof ” does not apply to the children of immigrants in the country without legal status.

“The Supreme Court has never ruled on this specific question,” said Sarah Pierce, an analyst with the Migration Policy Institute, a think tank in Washington D.C.

The high court has ruled on two related cases that analysts say would weaken such an argument. In 1898, the court held in United

States v. Wong Kim Ark that a U.S.born child of Chinese immigrants was entitled to citizenship. The court reiterated this interpretation in 1982 in Plyler v. Doe, holding that the 14th Amendment extends to anyone “subject to the laws of a state,” including the U.S.-born children of immigrants here illegally.

Charles Foster, a Houston immigration attorney who has advised President George W. Bush and Hillary Clinton on the issue, said that some proponents of removing birthright citizenship argue the original intent could not have contemplated granting the benefit to such children.

“The truth is they wouldn’t have thought of illegal immigration because that would not have been a problem at that time,” Foster said. “There were no quotas. If you got to the U.S. you were a legal resident, no matter how you got here.”

Judge James Ho of the 5th U.S. Circuit Court of Appeals, a conservative elevated by Trump, wrote in 2006 that birthright citizenship is “protected no less for children of undocumented persons than for descendants of Mayflower passengers.”

“Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution,” Ho wrote in a 2011 opinion piece in the Wall Street Journal.

Even Mark Krikorian, executive director of the Center for Immigration Studies, a Washington group favoring the end of birthright citizenship, said he thought the administration was unlikely to prevail at the Supreme Court on the argument.

“If I was a betting man, I would not bet on it,” he said.

Texas officials weigh in

Texas Attorney General Ken Paxton said in a TV interview that he supports the idea and predicted it would be a “close call” before the high court.

Gov. Greg Abbott indicated that he was not as certain, saying at a campaign stop in Georgetown that the proposal would “require keen legal analysis.” He later told reporters in Sugar Land, “The reality is, there’s only one entity in this country that has the authority to do anything about this, and that is the United States Congress.”

U.S. Sen. Lindsey Graham, a South Carolina Republican who has become a staunch defender of Trump, said on Twitter that he supported the president’s efforts to have the court review what he saw as an unsettled question. He said he would also introduce legislation that would deal with the future children of those in the country illegally.

“It has become a magnet for illegal immigration in modern times,” he said.

Pierce, of the Migration Policy Institute, said most people come to the United States for a host of reasons, including seeking better employment or fleeing danger, and that having “anchor babies” is rarely an important draw.

According to the think tank’s analysis, if citizenship were denied to every child with at least one parent who is here illegally, the unauthorized population in the U.S. would reach 24 million by 2050 — more than double what it is now.

“This is going to create a selfperpetuating class that would be excluded from social membership,” Pierce said.

Aura Espinosa, a 35-year-old mother in Houston, said that despite its legal obstacles, Trump’s proposal nevertheless frightened her. She and her husband have temporary work permits through the endangered Deferred Action for Childhood Arrivals program, which Trump ended, forcing it into legal limbo in the courts.

Espinosa came here illegally with her parents when she was 8 and her three children were all born in the United States.

“You can see the hatred toward immigrants, to children, this president is having,” she said. “These kids who are born here, where would they be from then? It is threatening if he is willing to try this.”