Ever since the President announced his intention to end birthright citizenship via executive order, much of the media debate has centered on this idea. (And make no mistake… that’s a feature, not a bug. Donald Trump clearly knew that would happen and was almost certainly counting on it.) But despite his initial insistence that the plan was already in the works and his criticism of Speaker Paul Ryan for contradicting him, there are signs that he’s already rethinking it. During a tarmac briefing with reporters as he prepared to head to Florida, Trump appeared to backtrack a bit and suggested that perhaps Congress should do the deed. (Washington Times)
President Trump said Wednesday he’s still committed to ending birthright citizenship for babies born to illegal immigrants, but would prefer to go through Congress rather than use an executive order.
That’s a softening of his stance from an interview published Tuesday, where he told Axios, an online political outlet, that he was preparing an executive order to test the boundaries of the Constitution’s definitions of automatic citizenship…
Mr. Trump said curtailing birthright citizenship was “much less complex” than some were making it out to be.
“I’d rather do it through Congress because that’s permanent. But we can certainly do it through … executive order,” he said.
We should keep in mind that there are two different debates happening here and you should be able to distinguish between the nuts-and-bolts policy question and the politics. This remains a GOTV strategy for the conservative base, particularly the immigration hardliners such as myself. It’s a popular topic which at least has the chance to drive a few more complacent GOP voters to the polls next Tuesday.
As for the reality of the suggestion, despite all of the pushback I received when I first wrote about it, the prospects for ending birthright citizenship in the near future remain dim, to say the least. Whether it’s done through an executive order or a new bill in Congress (good luck getting that through the Senate, by the way…), the Democrats will find somebody with the standing to challenge it. Then they’ll shop around for the right judge – most likely in the Ninth Circuit – and have an injunction placed on the new policy nationwide while the question grinds through the courts.
In the end, only the Supreme Court can make a final ruling on what the 14th Amendment truly means, and even then it will remain a sore point. Is it possible that the new conservative majority on the court will read ” and subject to the jurisdiction thereof” to mean it only applies to babies born to people who are in the country legally as either citizens or permanent resident aliens? I suppose they might, but it’s still not going to make everyone happy.
In reality, the only bedrock solution should be found in a constitutional amendment. Either lop off those six words (if you want illegal aliens’ babies to be citizens) or rewrite that section to specifically say that the mother must be a citizen or lawful resident alien. This is much the same as the argument we frequently have over the Second Amendment. The Founders would have done us a huge favor if they’d left the first 13 words off. Of course, when you open the door to amending either of them you invite unintended consequences if your ideological opponents grab the pen out of your hands.