Assuming this isn’t just a feint to fire up the base in the final week before the election, the President is setting himself up for a major court battle. According to multiple news outlets, Trump told Axios (for an upcoming HBO interview) that he plans to sign an executive order ending birthright citizenship. As you’ll see below, however, this may not have been Trump’s actual plan in the first place. But if he’s serious, Rudy Giuliani might want to pick up a phone and call his client because I’m pretty sure that’s not how this works. (Boston Globe)
President Trump plans to sign an executive order that would remove the right to citizenship for babies of non-citizens and unauthorized immigrants born in the US, Axios reports, citing comments made in an interview for “Axios on HBO.”
“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States,” Trump told “Axios on HBO” Monday. “It’s ridiculous. And it has to end.”
The comments mark another escalation in Trump’s hard-line stance on immigration ahead of the Nov. 6 midterm elections that will determine control of Congress. His administration announced yesterday that it would send about 5,200 troops to the southern border with Mexico by the end of the week to head off a caravan of migrants.
As I mentioned above, this may not even be part of the President’s plans in the immediate future. Axios provides this clip from the interview and it seems clear that Trump didn’t come to talk about that subject. The interviewer brings it up out of the blue. Then the President jumps into the answer as if it’s already in the works.
Notice that Trump is asked if he’s “talked to counsel” about the idea. He answers in the affirmative and states that it’s already “in process.” Could that be true? What lawyer would clear such a plan? Let’s remember that the concept of birthright citizenship has been in place since the passage of the Fourteenth Amendment in 1868. “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..”
I’m no attorney, but I’m pretty sure you can’t amend the Constitution via executive order, nor can you choose to willfully ignore it. I’ve heard the argument that the infant children of illegal aliens aren’t fully “subject to the jurisdiction thereof” but it sounds like seriously weak tea. The argument that the mother doesn’t technically “reside” in the state actually sounds a bit more solid, but the wording makes it sound as if that would only apply to their state of residence. And the infant doesn’t technically have a residence yet in any event. Either way, such an order would be immediately challenged in the courts and held up for ages.
The fact is that President Trump knows birthright citizenship is a sticking point for many immigration hardliners in his base and the suggestion that he might do away with it would play very well. The President is focused on little other than boosting his party in the midterms right now and every bit of red meat that might drive more Republican voters to the polls next week is probably going to be hauled out. In the end, I wouldn’t be terribly surprised if election day is the last time you hear about this executive order.