A political firestorm and legal debate has been ignited by President Donald Trump’s declared intention to sign an executive order to deny citizenship to babies born in the United States to non-citizens and unauthorized immigrants.
“It’s in the process. It’ll happen,” Trump said in an interview with Axios on HBO when asked about terminating current U.S. policy allowing birthright citizenship. “It’s ridiculous,” added Trump. “And it has to end.”
The president asserted that the United States is the only country granting birthright citizenship. It is not — about 30 others, including America’s neighbors Canada and Mexico, do as well. But some countries — including Australia, Britain, France, India and Ireland — have repealed the right in recent decades.
Trump said he discussed the idea with his counsel who informed him a constitutional amendment is not needed to end birthright citizenship, known legally as jus soli.
Lawmakers of Trump’s own party are of different minds on the matter.
“Finally, a president willing to take on this absurd policy of birthright citizenship,” tweeted Republican Senator Lindsey Graham, announcing he will introduce legislation mirroring Trump’s proposed executive order.
But Congressman Carlos Curbelo, representing Florida 26th district — where nearly half of the population is foreign born — is telling the president he cannot end birthright citizenship by executive order because it is included in a constitutional amendment and therefore protected by the Constitution.
“What we really need is broad immigration reform that makes our country more secure and reaffirms our wonderful tradition as a nation of immigrants,” Curbelo said on Twitter.
Intrepreting the 14th
Constitutional scholars are already arguing about how judges would view the inevitable legal challenge to the executive order. What they all do agree on is that the interpretation of the 14th Amendment is what is at question.
“We 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” applies to those who are in the country illegally, Vice President Mike Pence said in remarks Tuesday.
“It’s an open question,” agreed John Eastman, a law professor at Chapman University’s Center for Constitutional Jurisprudence.
The amendment, ratified in 1868, was intended by lawmakers to ensure that former slaves after the Civil War would not see their basic rights as citizens restricted by still-defiant Southern states.
The amendment reads: “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.”
Some conservatives, however, maintain the amendment was merely intended to provide citizenship to babies born in the U.S. to legal permanent residents.
Trump’s plans to end the practice of granting citizenship to any baby born in the U.S. further escalates his administration’s efforts to promote immigration as a major campaign issue — including asylum law changes and halting migrant caravans from entering the country — leading up to the Nov. 6 midterm elections.
“This is a blatantly unconstitutional attempt to fan the flames of anti-immigrant hatred in the days ahead of the midterms,” according to the American Civil Liberties Union, generally considered the pre-eminent defender of the Bill of Rights (the first 10 amendments of the U.S. Constitution).
Up to the courts
“The 14th Amendment’s citizenship guarantee is clear,” the ACLU said in a statement Tuesday. “You can’t erase the Constitution with an executive order.”
Changing a constitutional amendment requires promulgating another amendment to undo the first one. A two-thirds majority vote is required from both houses of Congress and then 38 states have to ratify the new amendment, making this a difficult, if not impossible, endeavor.
“President Trump’s preposterous suggestion that he can eliminate birthright citizenship — a right guaranteed by the 14th Amendment — is nothing more than another crass attempt to galvanize his base ahead of the midterm elections,” said Human Rights First. “Not only would such an order violate the U.S. Constitution, but it is clearly aimed at dividing, rather than uniting, the nation.”
Constitution scholar Eastman says Trump’s push for ending birthright citizenship should not come as a surprise to anyone. “This was a significant part of his campaign in 2016,” Eastman told VOA. “And he got hammered for it.”
Eastman — who contends the amendment has been misapplied for decades — said, “it’s not a crazy idea,” but “whether the courts would go along with this, I don’t know.”
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