White House officials are unable to point to or describe any internal assessment to justify President Donald Trump’s contention that he can unilaterally end the granting of U.S. citizenship to any child born on American soil.
Several Trump aides were asked whether such a legal analysis was conducted by the White House counsel’s office or officials at either the Justice or Homeland Security departments and briefed to the president before he announced he intends to sign an executive order ending the practice in an interview with Fox News that aired Monday night.
They were also asked whether the president’s contention that he has the legal authority to stop citizenship for some migrant babies was based on legal assessment presented to the White House by a congressional office or outside conservative scholar. The same officials were asked to summarize any analysis that was used by Trump before making his intention and legal stance public.
In every instance, the White House would not provide any information, though officials stopped short of denying the existence of such guidance.
One White House official referred to a second official, who was unable to say whether any legal counsel inside the West Wing or Justice Department had conducted a thorough legal assessment before Trump spoke to Fox News. The same official was also unable to say anything to dispel the notion that the president might take up the idea after seeing it on a right-leaning cable network or other such media outlet.
Every White House receives legal and policy advice from its allies on Capitol Hill, in think tanks, nonprofit organizations and academia. But the White House official offered no evidence Trump’s contention came from a legal study conducted by experts from any such office or group.
Was some kind of legal scholarship reviewed by or briefed to the president? Was there an assessment for how the president’s order would simply terminate a 1952 law passed by Congress that codifies the 14th Amendment into the federal canon?
“I’ve got nothing for you on that,” the official said several times.
The official did say he was not denying the existence such documents, however.
This is not the first time White House officials have been unable to confirm the existence of or describe a legal document to support a Trump claim. They also have yet to point to any internal assessment to back up his contention he has the legal authority to fire special counsel Robert S. Mueller III.
During the 2016 presidential campaign, candidate Trump talked about ending what’s known as “birthright citizenship.” But he never explained his legal rationale. He shed some light on it in a Wednesday morning tweet.
In a Wednesday morning tweet, he highlighted five words within the 14th amendment as the basis of his argument. “It is not covered by the 14th Amendment because of the words ‘subject to the jurisdiction thereof,’” he wrote.
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.”
So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other. It is not covered by the 14th Amendment because of the words “subject to the jurisdiction thereof.” Many legal scholars agree.....— Donald J. Trump (@realDonaldTrump) October 31, 2018
Bob Bauer, White House Counsel to former President Barack Obama, called the legal fracas an “inaugural moment” for new White House Counsel Pat A. Cipollone.
“This president’s lawyer also faces the day-to-day daily struggles of a demagogic executive who will press for aggressive constitutional and legal positions consistent with an unbounded belief in his own authority, his taste for playing to the political crowd, and his expectations that ‘his’ lawyers will do as bidden,” Bauer wrote in a Lawfare blog post.
The president told Axios he was first informed such an executive order would be unlawful, only to later hear the opposite.
“But who told him what and when?” Bauer wrote.
If anyone actually did, the White House simply cannot say.
George Conway, a former acting U.S. solicitor general in the Obama administration and husband of White House counselor Kellyanne Conway, wrote a blistering op-ed published Wednesday by the Washington Post.
“Sometimes the Constitution’s text is plain as day and bars what politicians seek to do. That’s the case with President Trump’s proposal to end ‘birthright citizenship’ through an executive order. Such a move would be unconstitutional and would certainly be challenged. And the challengers would undoubtedly win,” Conway wrote.
“At its core, birthright citizenship is what our 14th Amendment is all about, bridging the Declaration of Independence’s promise that ‘all men are created equal’ with a Constitutional commitment that all those born in the United States share in that equality,” he added.