Constitutional Scholars Shut Down Trump's Hopes of Changing the 14th Amendment by Fiat: It's 'Absolutely Clear' He Can't End 'Birthright Citizenship'
With the 2018 midterms less than a week away and many political analysts saying that Republicans are likely to lose their majority in the House of Representatives, President Donald Trump is going out of his way to fire up his far-right base—and that includes railing against immigrants. Trump, in an interview with Axios this week, promised to end, by executive order, birthright citizenship for “anchor babies” (children born in the United States to non-U.S. parents). But according to many constitutional scholars, Trump doesn’t have that right—as it would be a blatant violation of the 14th Amendment to the U.S. Constitution.
During the Axios interview, Trump complained, “We’re 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…. with all of those benefits. It’s ridiculous. It’s ridiculous. And it has to end.”
But here’s what the 14th Amendment says on the subject of birthright citizenship: “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.”
Added to the Constitution in 1868—150 years ago—the 14th Amendment has been considered in various Supreme Court decisions over the years. In the 1898 decision United States v. Wong Kim Arc, the High Court ruled that a Chinese-American man who was born in the U.S. to parents who were Chinese nationals was a United States citizen. And 84 years later in its 1982 ruling in Plyler v. Doe, the Supreme Court ruled that even if one enters the U.S. illegally, they were within U.S. jurisdiction—which means that any of their U.S.-born children enjoy 14th Amendment protections.
Some of Trump’s obsequious, knee-jerk supporters have been quick to side with him on birthright citizenship, including advisor Kellyanne Conway (who claimed that the 14th Amendment is being “misinterpreted and misused”) and Sen. Lindsey Graham—who said he plans to introduce legislation to end birthright citizenship. MSNBC’s Joe Scarborough put it best when, in September, he asserted that Graham has gone from being “John McCain’s wing man in politics to Donald Trump’s carnival barker.”
But attorney George T. Conway, Kellyanne Conway’s husband, has parted company with his wife when it comes to birthright citizenship. In an October 30 piece for the Washington Post, George T. Conway and Neal Katyal (former acting solicitor general in the Obama Administration) wrote, “Sometimes, the Constitution’s text is plain as day and bars what politicians seek to do. That’s the case with President Trump’s proposal to end ‘birthright citizenship’ through an executive order. Such a move would be unconstitutional and would certainly be challenged. And the challengers would undoubtedly win…. At its core, birthright citizenship is what our 14th Amendment is all about.”
The 14th Amendment was a response to the Supreme Court’s 1857 decision in Dred Scott v. Sandford, which said that slaves and their children were not U.S. citizens and therefore, could not sue in federal courts. But when the 14th Amendment was added to the Constitution eleven years later, it declared that anyone born in the U.S. was a citizen.
Legal scholars have had much to say about the 14th Amendment over the years, including U.S. Court of Appeals Judge James Ho—who, in 2011, declared, “Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution. Birthright citizenship is a constitutional right, no less for the children of undocumented persons than for descendants of passengers of the Mayflower.”
In 1995, assistant attorney general Walter Dellinger testified before Congress that when it comes to birthright citizenship, “no discretion should be exercised by public officials.”
Even House Speaker and Ayn Rand worshipper Paul Ryan has called Trump out, asserting that “you can’t end birthright citizenship with an executive order.” Ryan told Lexington, Kentucky’s WLAK-AM, “As a conservative, I’m a believer in following the plain text of the Constitution, and I think in this case, the 14th Amendment is pretty clear.”
Trump, in response, lashed out at Ryan on Twitter on Halloween, posting, “Paul Ryan should be focusing on holding the Majority rather than giving his opinions on Birthright Citizenship, something he knows nothing about! Our new Republican Majority will work on this, Closing the Immigration Loopholes and Securing our Border!”
Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project, has weighed in as well—telling the New York Times, “The president cannot erase the Constitution with an executive order, and the 14th Amendment’s citizenship guarantee is clear. This is a transparent and blatantly unconstitutional attempt to sow division and fan the flames of anti-immigrant hatred in the days ahead of the midterms.”
And Peter J. Spiro, a law professor at Temple University in Philadelphia, told the Times, “The conventional understanding is absolutely clear that children born in the United States are citizens of the United States, with the insignificant exception of the children of diplomats.”
But Trump lives in a world of—to borrow an Orwellian phrase from Kellyanne Conway—“alternative facts.” And a constitutional amendment that is 150 years old isn’t about to get in the way when it comes to promoting anti-immigrant hysteria.