Trump Sheds Light on His Legal Rationale for Ending Birthright Citizenship

A 1952 law codifying the 14th Amendment adds a major major hurdle, however

With an umbrella handle in front of his face, President Donald Trump talks to reporters before leaving the White House October 15, 2018. (Photo by Chip Somodevilla/Getty Images)
With an umbrella handle in front of his face, President Donald Trump talks to reporters before leaving the White House October 15, 2018. (Photo by Chip Somodevilla/Getty Images)
Posted October 31, 2018 at 10:15am

President Donald Trump on Wednesday signaled that his belief he can legally end U.S. citizenship for children born here is based on the interpretation of five words written in 1868.

Democrats say the president is merely threatening to sign — as soon as this week — an executive order to end what’s called “birthright citizenship” as another way to energize his conservative base before Tuesday’s midterm elections. Such an order would surely prompt an immediate court challenge.

Trump and his Republican allies, like Sen. Lindsey Graham of South Carolina, see automatic citizenship as a “magnet,” in Graham’s words, for undocumented migrants to get onto American soil and establish legal roots via an infant child. End birthright citizenship, Trump and his allies say, and illegal immigration rates will plummet.

In a sign of a potential GOP internal struggle ahead, outgoing Speaker Paul D. Ryan of Wisconsin says a constitutional amendment would be necessary.

“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,” states the 14th Amendment to the U.S. Constitution.

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In a Wednesday morning tweet amid a national uproar over his Monday night announcement about the possible executive order, Trump highlighted five words within the amendment. “It is not covered by the 14th Amendment because of the words ‘subject to the jurisdiction thereof,’” he wrote, adding, “Many legal scholars agree…..”

Should he ultimately sign such an order, the U.S. Supreme Court might decide if he is correct on the former. As for the latter, it’s true that “many” scholars disagree about most constitutional matters — but his mere claim could be enough to drive up conservative turnout in key districts and states.

Trump’s goal is to limit Democratic gains in the House and pick up one or more seats in the Senate. And his every move is made with an eye toward his own expected 2020 re-election bid.

The White House has yet to describe any internal legal assessment for Trump’s claims about the 14th Amendment and any power he might have to end birthright citizenship.

But there also are questions about whether his order would be legal, since Congress passed a 1952 statute codifying automatic citizenship — which other Western countries have despite Trump’s false Monday night claim to the contrary — into law.

Even conservative scholars who want birthright citizenship doubt that a sitting president can do it with the stroke of a pen on an executive order.

“On substance, I believe President Trump is right on birthright citizenship — the 14th Amendment does not require it. I do not believe, however, that the president may change the interpretation of the 14th Amendment, which has been in effect for decades, by executive order, as he is reportedly contemplating,” Andrew C. McCarthy, a former chief assistant U.S. attorney, wrote this week for the conservative National Review.

“I am in favor of changing the current understanding of birthright citizenship, but I believe such a change must be done by statute to have any hope of surviving court-scrutiny … and even then, I give it less than a 50-50 chance,” he wrote.

In another tweet Wednesday morning, the president acknowledged a long court fight would be ahead, saying the matter would ultimately head to the Supreme Court.

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