President Donald Trump has long been a critic of birthright citizenship, and now he says he can and will end it via executive order. But can he? Most constitutional scholars say he can’t. Or if he does, that his order will be overturned by the courts.
But there are those who think the president is in the right.
We took an in-depth look at the constitutional issues around birthright citizenship in 2015. As a candidate, Trump had argued at the time that it would only take an act of Congress, rather than the much steeper hurdle of a constitutional amendment, to end the practice of extending automatic citizenship to children born of parents in the U.S. illegally.
Now the president says he can, and will, do it himself via an executive order.
“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump said in part of an interview with Axios published on Oct. 30. “Number one, you don’t need that. Number two, you can definitely do it with an act of Congress. But now they’re saying I can do it just with an executive order.”
Trump said he has talked about it with White House counsel.
“It’s in the process,” Trump said. “It’ll happen, with an executive order.”
As we wrote in 2015, it is dubious that “you can definitely do it with an act of Congress.” Most of the scholars we talked to at the time said it would require a constitutional amendment, which must be proposed by a two-thirds majority in both the House and Senate, and then would need to be ratified by three-fourth of the states.
Nonetheless, some legislators have tried unsuccessfully for years to pass a bill to end birthright citizenship for children of adults in the country illegally, and some of those bills implicitly assume the issue can be solved without a constitutional amendment.
Most recently, Rep. Steve King of Iowa introduced H.R. 140, the Birthright Citizenship Act of 2017, which seeks — going forward — to amend the Immigration and Nationality Act to grant citizenship at birth only if a child is born to a U.S. citizen or national, a lawful permanent resident residing in the U.S., or if the child is of someone serving in the U.S. military. Although the bill has 48 cosponsors, all Republicans, it has not progressed to a vote.
Most of the constitutional scholars we spoke to said changing the law via executive order, as Trump has proposed, is on even shakier legal footing.
Peter Schuck, a professor of law at Yale University, who in 2010 wrote an op-ed for the New York Times arguing that “history suggests that Congress can act on birthright citizenship without a constitutional amendment,” told us via email that attempting it via executive order is a non-starter.
“He [Trump] cannot do this by executive order,” Schuck said. “… and I feel confident that no competent lawyer would advise him otherwise. This is just pre-election politics and misrepresentation and should be sharply criticized as such.”
“Birthright citizenship is a statutory rule which only Congress can change,” Schuck said. “Whether even Congress can do so is a question of interpretation of the 14th Amendment’s Citizenship Clause.”
According to that clause, ratified in 1868, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”
The idea was to grant citizenship to recently freed slaves. But the 14th Amendment also forms the basis of the country’s longstanding policy of granting birthright citizenship to anyone born on American soil.
The birthright citizenship portion of the amendment was upheld by the Supreme Court in 1898 in the case United States v. Wong Kim Ark, which involved a man, Wong Kim Ark, who was born in San Francisco to parents who were citizens of China but legally living in the United States. (There was no such thing as illegal immigration at the time.) Some argue that while that settles the issue of whether the 14th Amendment grants citizenship to children born to parents in the country legally, it doesn’t necessarily settle the issue regarding children born in the U.S. to parents in the country illegally.
That was the point made by Vice President Mike Pence in an interview with Politico on Oct. 30.
“We all cherish the language of the 14th Amendment, but the Supreme Court of the United States has never ruled on whether or not the language of the 14th Amendment ‘subject to the jurisdiction thereof’ applies specifically to people who are in the country illegally,” Pence said.
The only other Supreme Court involvement on the issue is a footnote in a 1982 decision in the case Plyler v. Doe, which dealt with the issue of whether states must provide education to children not “legally admitted” into the United States. In that case, Justice William Brennan, writing the majority opinion in the 5-4 decision, stated that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”
John Eastman, a constitutional scholar and director of Chapman University’s Center for Constitutional Jurisprudence, argues the law is being misapplied and says the president has an obligation to “get it right” with an executive order. Chapman University is a private Christian-related institution in Orange County, California.
Eastman’s position hinges on the phrase “subject to the jurisdiction thereof” in the 14th Amendment.
In a 2015 New York Times op-ed, Eastman argued that “‘Subject to the jurisdiction’ means more than simply being present in the United States. When the 14th Amendment was being debated in the Senate, Senator Lyman Trumbull, a key figure in its drafting and adoption, stated that ‘subject to the jurisdiction’ of the United States meant not ‘owing allegiance to anybody else.’”
Eastman said in a phone interview with FactCheck.org that that precludes granting birthright citizenship to the children of immigrants in the country illegally, and he says Trump ought to clarify that through an executive order. (Eastman added that he hopes Trump applies the rule prospectively, meaning that he would not challenge the citizenship of those already granted birthright citizenship.)
“I have no doubt it’d get challenged, and I have no idea what the courts would do,” Eastman said.
Garrett Epps, a professor at the University of Baltimore School of Law and a constitutional law expert, says he has little doubt how the courts would rule if Trump tried to act unilaterally by executive order.
“I think it certainly should and absolutely would be rejected by the courts of appeals,” Epps told us via email. “As for what the Supreme Court would do, I hesitate to predict — this court is too new. But I have tried to find 5 votes for Trump’s position and it seems like an inside straight,” meaning it would be difficult.
In an article for The Atlantic on Oct. 30, Epps wrote, “The citizenship-denial lobby has focused on the words subject to the jurisdiction. Its members argue that citizens of foreign countries, even if they live in the U.S., are not subject to U.S. jurisdiction, and thus their children are not covered by the clause. To test this idea, ask yourself: If a foreign citizen rear-ends your car on your drive home today, will you, or the police, allow him to drive away on the grounds that a foreign citizen cannot be arrested, ticketed, or sued? For those scoring at home, the answer is no.”
Evelyn Cruz, director of the Immigration Law and Policy Clinic at Arizona State University’s law school, also believes the president would be upending the wording of the U.S. Constitution if he were to issue an executive order to end birthright citizenship.
“When the president signs an executive order he is required to be enforcing an existing law and has to faithfully interpret it by following it exactly or following a rational interpretation when the law is unclear,” Cruz told us via email. “The Constitution has the 14th Amendment and the Supreme Court has interpreted it to mean that all children born in the U.S. are citizens.
“The president can’t block the states from issuing birth certificates (state powers) but he can tell federal agencies not to give these children the benefits of citizenship (passports, social security cards, etc.),” Cruz said. “However, if he does that then he will be going against the understanding of what the 14th Amendment is and therefore be in violation of his duty to uphold the law. Executive doesn’t have the right to interpret when there is clear definition and we have had a clear interpretation of who is a US citizen at birth since the 1800s.”
It is fair to say that some legal scholars agree with Trump, and according to Trump some of them are in the Office of White House Counsel. But even those who agree with Trump allow that such an executive order would inevitably be challenged, and so the issue would ultimately be made by the courts. Most of the scholars we spoke to said the chances of such an order being upheld in the courts are slim. But as we wrote when Trump opined that the issue could be solved by an act of Congress, unless or until that happens — and the law were challenged in the Supreme Court — we can’t know for certain whether Trump is right.
In his interview with Axios, Trump also wrongly claimed, “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 for 85 years with all of those benefits. It’s ridiculous.” As we have written, while America’s policy is in the minority in the international community, it isn’t alone, by any means.
According to a 2010 analysis by the Center for Immigration Studies, a think tank that advocates for lower immigration, “30 of the world’s 194 countries” grant automatic birthright citizenship to all children born in their country. The U.S. and Canada are the only ones among those 30 countries that have advanced economies as defined by the International Monetary Fund. Outside North America, most of the 30 counties that have birthright citizenship policies are in Central and South America.