President Donald Trump is doubling down on his call to end birthright citizenship by executive order, embracing a fringe interpretation of the 14th Amendment backed by people who oppose granting universal citizenship to children born in the United States.
Trump caused consternation on Tuesday when he declared in an interview with Axios reporter Jonathan Swan for an upcoming HBO special that he planned to end birthright citizenship for children born in the United States to unauthorized immigrant parents. He falsely claimed that the US is the only country to grant citizenship to everyone born here. (More than 30 do.)
The president, who just days ahead of the 2018 midterms is stoking divisions on immigration in an effort to fire up the Republican Party’s base, on Wednesday reiterated his executive order idea on Twitter. He claimed that birthright citizenship costs the United States “billions of dollars and is very unfair to our citizens” and that it would be ended “one way or the other.”
So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other. It is not covered by the 14th Amendment because of the words “subject to the jurisdiction thereof.” Many legal scholars agree.....— Donald J. Trump (@realDonaldTrump) October 31, 2018
Trump claimed the matter is not covered by the 14th Amendment of the US Constitution because of the words “subject to the jurisdiction thereof.” His claim appears to be that unauthorized immigrants’ children aren’t “subject to the jurisdiction” of the United States. Opponents of birthright citizenship endorse this interpretation (Vox’s Dara Lind has a full explainer on the 14th Amendment and birthright citizenship.)
The president’s plan to scrap birthright citizenship via executive order has sparked a lot of debate, namely about whether or not he can actually do it. House Speaker Paul Ryan (R-WI) on Tuesday rebutted the idea, saying that changing birthright citizenship would “involve a very, very lengthy constitutional process.”
Most people assume that the 14th Amendment’s text applies to everyone born in the US, regardless of where their parents were born. But the Supreme Court has never ruled on whether that applies to children of unauthorized immigrants.
Trump and the critics of universal birthright citizenship are correct that the Supreme Court has never explicitly held, as a matter of law, that children of unauthorized immigrants born in the United States are citizens. (It has assumed that they are; in the 1985 case INS v. Rios-Pineda, in which the parent of two US-born children challenged his deportation order, the Court referred to the children as US citizens by birth. But because the Court didn’t make a formal legal finding in this regard, the statement was just dicta, or rhetoric.)
That doesn’t mean the executive branch has the power to unilaterally clarify what the Supreme Court meant. In practice, Trump signing an executive order redefining birthright citizenship would be a way to bring the issue to the attention of the Supreme Court — doing what he wants, and daring a conservative court with two Trump-appointed justices to stop him.
It’s unclear whether there’s an actual timetable for Trump’s executive order, or if one even exists. Trump has also been touting a non-existent tax plan ahead of the midterms, and he’s been talking a lot about immigration in an effort to fire up voters. He’s been stoking fears about a migrant caravan from Central America for weeks and is now sending 5,000 troops to the border to keep the migrants out, even though they’re still hundreds of miles away.
Trump’s plan, if there is one, appears to be to get the matter to the Supreme Court, which he indicated in a second tweet on Wednesday.
....Harry Reid was right in 1993, before he and the Democrats went insane and started with the Open Borders (which brings massive Crime) “stuff.” Don’t forget the nasty term Anchor Babies. I will keep our Country safe. This case will be settled by the United States Supreme Court!— Donald J. Trump (@realDonaldTrump) October 31, 2018
It’s not clear how such a challenge could play out. “Perhaps he is banking on the Supreme Court to change its interpretation of the 14th Amendment to permit him to circumvent it via executive order,” Renato Mariotti, a former federal prosecutor, told Vox’s Sean Illing, “but that is very unlikely given its clear language.”
Trump does not appear to believe so.