In an interview for "Axios on HBO," President Trump announced he will sign an executive order ending birthright citizenship. When challenged on the constitutionality of doing this by executive order, Trump replied:
"You can definitely do it with an act of Congress. But now they're saying I can do it just with an executive order."
This is simply untrue. The 14th Amendment -- which declares, "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" -- cannot be changed by executive order, or even by an act of Congress. It would require a constitutional amendment.
Not long ago, Trump revoked President Barack Obama's Deferred Action on Childhood Arrivals (DACA) because, as he correctly pointed out, it was an unconstitutional executive overreach. Now he wants to attempt to change the Constitution by executive order?
If Trump moves forward, he may find that the Supreme Court -- in all likelihood with the votes of his own nominees -- declares his action unconstitutional. That would be quite a rebuke.
Some conservatives justify his proposed action by taking a loose reading of the 14th Amendment, arguing that the phrase "subject to the jurisdiction thereof" leaves birthright citizenship subject to interpretation. Funny, just a few weeks ago, many of these same conservatives during Brett Kavanaugh's confirmation hearings were defending the "originalist" approach to the Constitution, which holds that we should interpret the plain words of the Constitution according to their original public meaning.
They were right the first time. Many of these same conservatives (correctly) bridle at the idea that the phrase "A well regulated Militia, being necessary to the security of a free State" in any way undermines the fundamental right of private citizens to keep and bear arms. Apparently, some on the right are strict constructionists when it's convenient but suddenly discover their belief in a "living Constitution" when it serves their policy preferences.
As my American Enterprise Institute colleague John Yoo explains, the originalist reading of the 14th Amendment is the correct one:
"The 14th Amendment's reference to 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof' refers to children who are born in US territory and are subject to American law at birth. Almost everyone present in the United States, even aliens, come within the jurisdiction of the United States. If the rule were otherwise, aliens present on our territory could violate the law with impunity. ... The original public meaning of the 14th Amendment -- which conservatives properly believe to be the lodestar of constitutional interpretation -- affirms birthright citizenship."
Yoo further points out the high court has upheld this view of the 14th Amendment:
"United States v. Wong Kim Ark (1898) upheld the American citizenship of a child born in San Francisco to Chinese parents, who themselves could never naturalize under the Chinese Exclusion Acts. The Court held that 'the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.' It also explicitly rejected the argument that aliens, because they owed allegiance to a foreign nation, were not within 'the jurisdiction' of the United States.
The precedent is so clear. So if Trump moves forward, he may find that the Supreme Court -- in all likelihood with the votes of his own nominees -- declares his action unconstitutional. That would be quite a rebuke.
And even if Trump could change the 14th Amendment in Obama-esque fashion with his pen and phone, that is the last thing Republicans should want to do -- both as a matter of law and a matter of principle. Because, as Yoo points out, the 14th Amendment is one of the Republican Party's great historic achievements:
"After the Civil War, congressional Republicans drafted the 14th Amendment to correct one of slavery's grave distortions of our law. In Dred Scott v. Sanford (1857), Chief Justice Roger Taney found that slaves, even though born in the United States, could never become citizens. The 14th Amendment directly overruled Dred Scott by declaring that all born in the U.S., irrespective of race, were citizens. It also removed from the majoritarian political process the ability to abridge the citizenship of children born to members of disfavored ethnic, religious, or political minorities."
Republicans should not be seeking to restore any elements of Dred Scott. They should not be weakening the Constitution with the same kinds of loose interpretive doctrines that liberals use to justify their favored policy outcomes. The way to prevent illegal immigrants from obtaining birthright citizenship for their children is to prevent them from entering the country illegally in the first place. Strengthen border security. Build the wall. But leave the Constitution alone.