The jury is still out on whether President Donald Trump is actually serious in claiming he can use his pen and phone to change the 14th Amendment of the Constitution over birthright citizenship. It’s possible Trump is just trying to gin up his base before next week’s midterm election.
It should be pointed out Trump has previously shown disregard for the 4th Amendment’s promise of due process – especially last Saturday when he said accused criminals, “shouldn’t have to wait years and years (to get the death penalty). Now, the lawyers will get involved, and everybody is going to get involved, and we’ll be 10 years down the line.” The President also suggested in February to, “take the guns first, go through due process second” whilst discussing men accused of domestic violence. He thankfully walked the comments back later – but anyone who cares about the 2nd Amendment should be concerned Trump might approve new regulations should Democrats take back Congress. We also shouldn’t forget Trump’s desire to open up libel laws, meaning he could target people who use callous words to describe his actions or his administration. Most of these statements – excluding the 2nd Amendment comments – could also be seen through the lens of enlivening voters so they’ll form an ideological phalanx around their god-king.
However, let’s consider Trump is actually serious about repealing birthright citizenship for babies born from noncitizens and illegal immigrants with an executive order. It’s a decision which is extremely questionable in its constitutionality, as I was under the impression it took Congress and 3/4ths of the states to make a change to the Constitution. There is certainly an ideological debate within the Republican Party and the conservative and libertarian movement on whether Trump has the power to change the Constitution. The issue of whether birthright citizenship is actually allowed in the 14th Amendment is a topic for another piece – as the debate in the Senate over the issue in 1868 is quite enlightening.
One should be careful before supporting this sort of movement by Trump. He did tell reporters on Halloween he’d prefer Congress get rid of birthright citizenship, but left it open for presidential action citing former President Barack Obama’s moves on DACA. The President is likely to open up a Pandora’s box of executive power – further transforming the U.S. into almost an elected monarchy. Congress would be turned into mere advisers, with the occasional ability to pass budgets to keep the government funded. The judiciary would have a say should the executive order be signed – but there’s no guarantee they’ll side with limiting presidential power on the issue.
Ponder on it a minute.
Say Trump decides to go through with his farcical notion on his plenary and absolute power. What is to stop a Democrat president from issuing an executive order adding the words, “when serving in the Militia,” into the Second Amendment a la the proposition from former Supreme Court Justice John Paul Stevens. What if a Democrat (or even a Republican) decided to add into the Second Amendment, “as long as it can only accept a five-round magazine” or “as long as it is not a semi-automatic rifle or shotgun.” That would completely turn gun ownership on its head and limit the ability of the public to own weapons.
What if a power-hungry tyrant in the executive decided to write into the Constitution, “so long as the government approves of said religion, speech, press, or protest” to the end of the First Amendment? The Fourth Amendment could be rewritten to add, “unless deemed a true threat to national security” thus justifying warrantless wiretapping. These executive orders would make those protected freedoms – already under assault by the government for decades – null and void!
Those looking to the Supreme Court would be hard-pressed to find any justice who believes in judicial restraint, aka trusting the government had the right intentions when it created said law to overturn the executive orders. One only needs to look at the decision to keep Trump’s travel ban in place as an example – should the Justice Department attempt to argue the president’s actions were for national security.
Amusingly, Trump may have hit the nail on the head on why some (but definitely not all) families make sure they give birth in the U.S.: entitlements. The government does hand out billion dollars in Social Security, Medicare, and Medicaid benefits a year – not counting the other handouts to corporations, married couples, and farmers through various tax exemptions or subsidies. The solution – one Trump hasn’t shown any interest at all in pursuing – is getting rid of the entitlements and subsidies. Of course, the government isn’t interested in ending these handouts – so the discussion will be on birthright citizenship.
Yet, it would be a mistake to suggest people were only immigrating to America for the handouts. There is plenty of opportunity in America – something instilled into this nation’s identity no matter who resides in the White House, Congress, governor’s mansions, state legislatures, or City Halls. This nation was founded on the notion of freedom and liberty; and, thus, restrained government.
The risk of adventure – of finding a better life – is what brings people to this country. It’s why Americans freely travel from one state to the other in search or new opportunity. Sometimes the new opportunity is found; sometimes it’s as fleeting as a midsummer dream. But it’s still an opportunity for all because the federal government is (allegedly) restrained by the Constitution.
This idea of letting Trump actually rewrite the Constitution (no matter how small of a change it might be) without following the process instilled in the document is completely counter to its ideals. Republicans correctly lost their minds whenever Obama wrote executive orders regarding DACA, Obamacare, or gun control. Why are those who were apoplectic regarding Obama now cheering Trump? The answer is, of course, politics because it’s all about “the damn jersey” to quote a friend from high school. It would be nice for some consistency but that’s like wanting a junkie to show some restraint with the drug of their choice.
Those wanting to be rid of birthright citizenship should go through the constitutional process to add an amendment to the document. It is a vote which would more than likely not pass either Congress or 3/4ths of the states but one never knows.
Any other way would set a disastrous precedent for future executive branch denizens and our nation as a whole.