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Judy Ford Wason Center for Public Policy

Wason Center

November 15, 2018

Immigration and Executive Authority: Could Trump Really End Birthright Citizenship?

Issue / National

President Trump speaking at the Texas border

President Trump has always made it clear to the American public that he favors strict regulations regarding legal and illegal immigration. Since assuming office, he has made a number of major, controversial changes to existing immigration policy. Most recently he stated in an interview with Axios that he believes it to be within the president’s power to unilaterally end “birthright” citizenship via an executive order despite the fact that the policy is provided explicitly for in the Constitution. According to the Center for Immigration Studies, there are at least 30 other countries that grant birthright citizenship, despite President Trump’s claim that the U.S. is the only country to do so.

The claim prompted widespread backlash from experts questioning whether President Trump actually has the authority to execute such actions, especially in terms of birthright citizenship. The birthright citizenship clause appears in the Fourteenth Amendment to the federal constitution, passed in the wake of the North’s victory over the South in the Civil War. The particular clause in question is the following:  “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.” In the Supreme Court case U.S. v. Wong Kim Ark in 1898 the Court ruled that a child born to Chinese citizens in San Francisco was considered a U.S. citizen because the first clause of the Fourteenth Amendment protected his right to citizenship because he was born on American soil. Thus, children born to people who are not legally in the country are still granted U.S. citizenship despite their parents’ legal status. Critics of the law argue that illegal immigrants come to the U.S. to have children born who can then use their citizenship status to help their parents and other family members legally immigrate under family reunification policies or receive less strident treatment in the system should they be detained by immigration and customs enforcement (ICE).

In addition to widespread criticism by Democrats, some Republicans have pushed back against President Trump’s proposed use of an executive order. Most notably, Speaker of the House Paul Ryan (R-WI) has gone on record saying that in order to remove the birthright citizenship clause, the proper constitutional amendment process would have to be undertaken.  Additionally, Bob Hugin, an unsuccessful Republican candidate for the New Jersey Senate race, tweeted his opposition to the policy by saying that he vowed to defend the Constitution and the Fourteenth Amendment. However, the Trump administration has continued to assert that the president has this power. Vice President Mike Pence claims that the Supreme Court has never ruled specifically on whether the “subject to the jurisdiction of” portion of the clause applies to those who illegally enter the country. In his interview, President Trump stated that he initially thought a constitutional amendment would be required, but that the White House Counsel’s Office advised him that an executive order was permissible.  Since the immense push back, he has now stated that he believes the use of an executive order would likely go to the Supreme Court.

Recently, President Trump announced a new set of rules giving himself the authority to block asylum status for illegal immigrants. The new rules are likely targeting the Honduran caravan heading toward the U.S. border, but this is uncertain considering that the Trump administration has declined to comment on which countries will be affected by the decision.  Similar to the birthright citizenship issue, legal scholars claim that the decision violates a major principle of federal asylum that states a country should address each asylum claim on its own merits.  Additionally, denying the chance for asylum in is violation of both national and international law.  By essentially barring asylum status based on country of origin, the Trump administration would be in direct violation of both of these doctrines.

The Trump administration is deriving its authority for this matter the same way it did for the widely-publicized travel ban, also known by many as the “Muslim Ban,” claiming national security needs. This frame was after the initial ban was struck down as unconstitutional. The revised ban was challenged in the Supreme Court but was ultimately upheld in a 5-4 decision earlier this year.  Specifically, the majority decision stated that the president held this authority as a result of the delegation of power regarding immigration policy by Congress over a long span of time via the Immigration and Nationality Act. The act states that the president is allowed to suspend entry of all aliens or place any sort of restrictions on the entry of aliens for a necessary period of time should national security risks emerge. Despite the majority decision to uphold the ban, the Court’s decision was heavily criticized in a dissent authored by liberal justice Sonia Sotomayor. In her dissent, she likened the decision to the approval to establish Japanese internment camps in WWII according to Korematsu v. United States.

The only path forward for Trump to end birthright citizenship is to issue an executive order and force the Supreme Court to determine if the Article II powers laid out for the president stretch as far as providing him autonomous power to amend the Constitution. Given the specificity of the language describing the amendment process in Article V, it is doubtful that even a favorable Court majority would find enough ambiguity to allow this. More importantly, the Court would open the door to all future presidents to enact all manner of changes to the Constitution unilaterally. The Court would almost surely rule against such a claim.

A recent  Pew Research poll shows that 68% of Americans feel that welcoming immigrants from all countries is essential to our national identity, but like many issues today, opinions differ greatly along party lines. Less than 50% of Republicans agree compared to 85% of all Democrats.

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