In an interview with Axios’ new HBO series, President Donald Trump said that he was planning to sign an executive order that would end automatic birthright citizenship for foreigners born on American soil. Recalling a criticism he often made on the campaign trail, Trump said the order would no longer grant immediate citizenship to the children of immigrants and non-citizens who just happened to make it across the border in time to have their babies.
While it’s inevitable that this matter of constitutional law will be challenged in the courts, the outcome is uncertain. And the president is convinced through discussions with White House counsel that he has the authority to make this radical change in how the U.S. views citizenship rights.
“It was always told to me that you needed a constitutional amendment,” he told Axios. “Guess what? You don’t. You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.”
Hopefully that’s true, because it would probably be easier to pass a constitutional amendment than to get Congress to pass anything like this.
“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,” Trump said. “It’s ridiculous. And it has to end.”
Trump’s theory on birthright citizenship will be controversial to say the least. The 14th Amendment states: “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.”
That would initially seem to confer relatively little room for interpretation. But some constitutional scholars contend that the clause “subject to the jurisdiction thereof” eliminates illegal immigrants and others who are merely trying to use the 14th Amendment as a secret shortcut to citizenship. They insist that the amendment was meant to be applied only to the children of those who have a full right to be in the country in the first place – green card holders, citizens, naturalized citizens, and the like. Not to any illegal immigrant who happens to hop the fence.
Put plainly, it’s up in the air. The Supreme Court has never ruled on a case involving the children of illegal immigrants. If Trump signs this executive order, the court will almost certainly have to address what is sure to be an issue fraught with heated debate on both sides.
