Trump’s latest attack on the rule of law should outrage us all
President Donald Trump believes he has the power to scuttle the 14th Amendment via executive order.
Constitutional scholars disagree. So would the Supreme Court, presumably, should it come to that. But it might, unfortunately. Trump is the president. He’s made it clear that he’d like to end birthright citizenship for children born in the United States to noncitizen parents. And the cumulative expertise of America’s constitutional scholars isn’t sufficient to prevent him from issuing an executive order to that effect, as he threatened this week.
“It was always told to me that you needed a constitutional amendment. Guess what? You don't,” Trump said in an interview with Axios taped on Monday.
He also said he plans to take executive action on the subject sometime in the future.
All Americans should be outraged by Trump’s threat, even if they share his opposition to birthright citizenship. And Texans, in particular, should speak up, because this isn’t an abstract issue for our state.
The Constitution is the law of the land. It is the civic equivalent of a sacred text. Trump, like all presidents, has sworn an oath to preserve, protect, and defend this document. We can and should object to the fact that he has instead devoted himself to continually pawing away at it, with no regard for the rule of law and the bedrock of our democracy.
Trump’s declaration that he plans to end birthright citizenship may be nothing more than a brazen political ploy to rally his base on the eve of the midterms.
That’s likely all he intends it to be. In recent weeks, he’s sounded the alarm over a caravan of migrants from
Central America, most of whom are apparently hoping to seek asylum in the United States. On Monday, the Department of Defense announced plans to send thousands of troops to meet the caravan, currently in southern Mexico – more than a thousand miles away. And while Trump’s most craven supporters think he can do whatever he wants via executive order, some Republican leaders want to dissuade him from trying to do so, this time.
“You cannot end birthright citizenship with an executive order,” House Speaker Paul Ryan said in a radio interview on Tuesday.
By contrast, Texas Gov. Greg Abbott declined to take a clear stance on Trump’s plans.
“Haven’t had a chance to read the law,” said Abbott, who served 12 years as Texas attorney general.
Texas’s current attorney general, Ken Paxton, similarly demurred when asked — during one of his regular appearances on Fox News — whether such an executive order would pass constitutional muster.
Lone Star State voters, at this point, shouldn’t expect better leadership from those two. But for reference, roughly a third of the state’s residents are immigrants or second generation, meaning that at least one of their parents was born outside the United States.
And Trump’s rhetoric implicates all of us, even though he’s nominally trying to target the children of unauthorized immigrants — or, as they’re often referred to in right-wing cesspools, “anchor babies.”
The theory Trump is espousing here rests on the premise that the first section of the 14th Amendment has been wrongly interpreted.
“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,” is the relevant language.
In July, Michael Anton, a national security professional who briefly served in Trump’s administration, wrote an op-ed column for the Washington Post focused on this phrasing. In his view, it implies that the senators who ratified the amendment did not necessarily think that birthright citizenship should extend to the children of foreign nationals, even if they were born on U.S. soil.
That’s an opportunistic interpretation, in my view — the kind one would only come up with if they were hoping to goad the president into unilateral action, as Anton was.
But it would be difficult for Trump to come up with an executive order based on this line of reasoning that wouldn’t have implications for the children of immigrants who came here legally, too.
The United States has no control over the citizenship laws of other countries, obviously. So a child born in the United States to a foreignborn mother or father may have citizenship rights in that parent’s country of origin — even if his or her other parent was born in the United States, and even if the foreign-born parent had acquired citizenship via naturalization.
And — more to the point — if U.S.-born children of immigrants living in the country illegally can be stripped of their citizenship by executive order, so can anybody else. And that is fundamentally un-American.
Trump, whose Slovenian in-laws became U.S. citizens in August thanks to a family-based immigration program , may never issue an executive order seeking to end birthright citizenship. If he does attempt to implement such a plan, the courts would quickly put the kibosh on it.
Still, by publicly mulling this option and by denying that he’s bound by what the Constitution says in plain language, Trump is undermining the law of the land.
Even worse, the president is questioning what it means to be an American, and doing it for his personal political gain.
That’s reckless and abhorrent, and we should all object to it, even if our leaders don’t.
All Americans should be outraged by Trump’s threat, even if they share his opposition to birthright citizenship. And Texans, in particular, should speak up, because this isn’t an abstract issue for our state.