MIDTERMS: TRUMP SAYS HE WILL END BIRTHRIGHT CITIZENSHIP
▶ Experts sceptical that President’s proposal would pass through courts
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