By CAITLIN OPRYSKO and TED HESSON for POLITICO – President Donald Trump said Monday that he is planning to sign an executive order that would end the practice of bestowing U.S. citizenship onto babies born in the U.S. to non-citizen parents, a move almost certain to draw legal challenges on constitutional grounds.
In an interview with Axios released Tuesday, Trump said he had discussed the idea with the White House counsel and that “it’s in the process, it will happen, with an executive order.”
Such an order would seek to override the 14th Amendment, which reads in part: “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 immigration hardliners have argued that the 14th Amendment is not applicable to those not in the U.S. legally or here only on a temporary visa. Trump, who has long promised to end birthright citizenship, told Axios that instead of amending the Constitution, he has been advised that his administration could end the practice through executive order.
Josh Blackman, a law professor at the South Texas College of Law Houston, said the first question is whether the executive order actually exists or is “just something he’s making up for the midterms.”
“But assuming it’s a real thing, it will be very surprising why his lawyers signed off on it,” Blackman said. “There are a lot of issues where legal scholars widely disagree. Birthright citizenship is not one of these areas.”
The move would be sure to ignite legal challenges as to whether Trump has the power to end birthright citizenship, but Trump indicated that the White House has determined he does.
“It was always told to me that you needed a constitutional amendment,” Trump said. “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.”
The issue of whether birthright citizenship could be applied to children born to non-U.S. citizens was the focus of an 1898 Supreme Court ruling. In U.S. v. Wong Kim Ark, the court held that a man born to Chinese-national parents in the U.S. was in fact a U.S. citizen.
Blackman said it‘s broadly accepted that the phrase “subject to the jurisdiction” of the United States means subject to U.S. laws. However, a small group of legal experts disagree with that view.
John Eastman, a professor at Chapman University and opponent of the longstanding interpretation of the amendment, wrote in a 2015 New York Times op-ed that the phrase “means more than simply being present in the United States.”
Vice President Mike Pence, in a POLITICO Playbook interview on Tuesday, claimed that the White House may, in fact, have the legal standing to challenge automatic birthright citizenship.
“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 claimed.
“One of the things the president articulated on the campaign trail two years ago was that we want to look in the broadest way possible at American law that may be used as a magnet to draw people into our country.”
Pence said that he didn’t want to get ahead of Trump on any policy pronouncements, however. “I’ll leave it to the president to announce whatever actions,” he said.
Trump’s push to end birthright citizenship comes amid a larger push by the White House in the closing days of midterm campaign season to highlight immigration issues and drive the president’s conservative base to the polls.
Trump has railed against caravans of asylum-seeking migrants traveling from Central America, warning on Monday without offering evidence that there are “Gang Members and some very bad people” mixed in to the group, which he has referred to as an “invasion.”
On Monday, the Pentagon and the Department of Homeland Security announced that more than 5,000 U.S. troops, along with military supplies, including helicopters, would be deployed to the U.S.-Mexico border to brace for the arrival of the caravans, the closest of which is still making its way through southern Mexico.
The administration is mulling other tactics to block the migrants, including threats to cut off aid to countries that don’t impede such caravans, and an executive order and regulatory action that would place restrictions on the migrants’ ability to apply for asylum once they reach the U.S.