MAHA 'squarely at odds' with Trump as 2 of his top priorities collide: legal scholar

If U.S. President Donald Trump has his way, the U.S. Supreme Court will uphold his executive order declaring birthright citizenship illegal — and Congress will pass the Safeguard American Voter Eligibility Act (SAVE Act or SAVE America Act). Many legal scholars, however, are saying that his executive order is unconstitutional, as birthright citizenship is in the U.S. Constitution's 14th Amendment.

Law professor Steven Lubet, who teaches at Northwestern University's Pritzker Law School in the Chicago area, examines the executive order and the SAVE Act in an op-ed published by The Hill on April 27 — and argues that there is a major "conflict" between the two.

"Two of President Trump's major priorities may be about to collide, with potentially calamitous results," Lubet warns. "Trump's executive order abolishing birthright citizenship, now before the Supreme Court, is at direct odds with the SAVE America Act, requiring proof of citizenship to vote — which Trump has been insistently pushing Congress to pass. The conflict between the two is inescapable."

Lubet adds, "The act demands official verification of citizenship to vote, while the executive order could effectively discredit most forms of proof."

Trump's legal team contends that the 14th Amendment doesn't mean what defenders of birthright citizenship say it does.

"Let's begin with the executive order, formally titled 'Protecting the Meaning and Value of American Citizenship,' which purports to recognize birthright citizenship only of children with at least one parent who is either a citizen or a 'lawful permanent resident' of the U.S.," Lubet explains. "That contradicts the 14th Amendment, and an 1898 U.S. Supreme Court decision, plainly stating that those born in the U.S. 'and subject to the jurisdiction thereof, are citizens of the United States.' The Trump Administration has argued, however, in a tortuous two-step, that 'jurisdiction' actually means 'allegiance,' which the babies of 'illegal' or temporary entrants supposedly do not hold."

Lubet continues, "Under this theory, a U.S. birth certificate would no longer constitute presumptive evidence of citizenship. The same goes for other forms of evidence, such as passports, which derive from birth certificates and are silent about parental immigration status…. Now, let's turn to the SAVE America Act, which has passed the U.S. House and is now pending in the Senate. It would require all new applicants for voter registration, or re-registration, to provide 'documentary proof of United States citizenship,' such as a valid U.S. passport."

Under the SAVE America Act, a regular state-issued driver's license would not be enough to prove citizenship.

"Crucially, existing forms of such documentation typically do not say anything about parental citizenship or lawful residency, and consequently could not establish definitive proof, even under the Save America Act, if Trump's executive order prevails," Lubet notes. "Well over 10 million American adults relocate or change addresses every year, and many more change their names due to marriage or divorce. It is unknown how many would be unable to provide ready proof of citizenship to reregister to vote, but it would surely be many more under Trump's executive order, because birth certificates would no longer be conclusive of citizenship…. The Supreme Court is expected to rule on Trump's birthright order by June."

Lubet adds, "The SAVE act has so far been blocked by the Democrats' filibuster, with Trump urging Republicans to change Senate rules and pass it with their simple majority. Either one alone would destabilize voting rights for millions of American citizens. Together, they would bring chaos."