When it comes to the 14th Amendment, my good friend and fellow Justice Department veteran Andy McCarthy agrees that it does not require birthright citizenship. And we’re not alone: Other experts, such as noted constitutional law scholar John Eastman, law professor and former dean of the Fowler School of Law at Chapman University and a senior fellow at the Claremont Institute, take the same position on the citizenship clause (“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”).

But Andy and I differ on one very important point: whether the misinterpretation of the Amendment can be changed by executive order. He doesn’t think so; I say that it can.

Simply put, the president does have the ability through executive action to direct federal agencies to act in accordance with the original meaning and intent of the citizenship clause, and to direct those agencies to issue passports, Social Security numbers, etc., only to those individuals whose status as citizens meet the requirements of the law. This is especially true here where, contrary to Andy’s speculation, Congress actually did not clarify that its later statutory provision was somehow inconsistent with the original understanding of the Amendment.