President Trump’s stunning new promise to end birthright citizenship by executive order is roiling the midterm debate at the eleventh hour, fanning the flames of an already explosive immigration fight — and dividing Republican message-makers — just days before voters head to the polls.
Many legal experts argue there’s virtually no chance the president’s unilateral attempt to reimagine 150 years of constitutional law would withstand court scrutiny, even with two new Trump-appointed Supreme Court justices lending a fresh conservative lean to the nation’s highest bench.
Politically, however, the gambit appears custom-designed to invigorate the GOP’s conservative base with an anti-immigrant message — one that helped usher Trump into the White House in 2016 — just as Republicans are scrambling to avert a blue wave in next week’s elections.
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Yet if the intent was to unify Republicans ahead of Election Day, it got off to a rocky start on Tuesday, as a number of GOP lawmakers quickly rejected Trump’s claim that the president has the authority to rescind a central tenet of U.S. immigration law — one embedded in the Constitution — without congressional action.
“You cannot end birthright citizenship with an executive order,” Speaker Paul Ryan (R-Wis.) said during an interview with Lexington, Ky., radio station WVLK. “We didn’t like it when [former President] Obama tried changing immigration laws via executive action, and obviously as conservatives, we believe in the Constitution.”
Ryan was hardly alone. Indeed, there was almost no show of support for Trump’s promised executive order among Republicans on Capitol Hill. The president’s top allies — including Reps. Kevin McCarthy (R-Calif.), Mark Meadows (R-N.C.) and Jim Jordan (R-Ohio) — all declined to weigh in. And other prominent Republicans sent early warnings that eliminating birthright citizenship would require an act of Congress, at the very least.
“I am not a lawyer, but it seems to me it would take a constitutional amendment to change that as opposed to an executive order,” Sen. Chuck Grassley (R-Iowa), chairman of the Senate Judiciary Committee, told a CBS affiliate in his home state.
The rare pushback from congressional Republicans comes as Trump has escalated his fiery attacks against immigrants as the midterms approach — an extension of both his campaign promise to build a “beautiful” border wall and, more recently, administrative efforts to ramp up deportations, slash refugee quotas and send thousands of troops to the southern border in a show of deflective force against a “caravan” of Central American migrants en route to the United States, many of whom are seeking asylum from violence in their home countries.
Those efforts by Trump have been widely hailed by Republicans in Congress; their snub of Trump’s vow to end birthright citizenship suggests certain limits to the unilateral enforcement policies they’re willing to accept from their ally in the White House.
“Birthright citizenship is protected by the Constitution,” tweeted Rep. Carlos Curbelo, a Republican immigration reform advocate facing a tough reelection in Southern Florida. “What we really need is broad immigration reform that makes our country more secure and reaffirms our wonderful tradition as a nation of immigrants.”
Trump sees a different legal landscape. In an interview with Axios, parts of which were released Tuesday, the president claimed the authority to revoke citizenship rights for children born in the U.S. to people who are in the country illegally. And he vowed to do just that.
“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump said. “We’re the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits.”
However, more than 30 other countries recognize birthright citizenship.
“It’s ridiculous, and it has to end,” he added. “It’s in the process. It’ll happen, with an executive order.”
The assertion is at odds with a bedrock doctrine of constitutional law, enshrined in the 14th Amendment, which since 1868 has guaranteed that “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.”
The amendment helped to annul the Supreme Court’s Dred Scott v. Sandford ruling, decided 11 years earlier, which found that slaves and their descendants were not citizens of the United States.
Democrats lunged at the opportunity to portray Trump as both heartless, when it comes to immigration policy, and clueless about the separation of powers rooted in the nation’s founding documents. To drive the point home, Rep. Gerry Connolly (D-Va.) sent the president a copy of the Constitution.
“Knowing your aversion to reading, I have highlighted the 14th Amendment for your convenience,” Connolly said. “We abide by this sacred text in America.”
Legal scholars, meanwhile, wasted little time dismissing Trump’s claim to executive power in this situation.
Laurence Tribe, professor of constitutional law at Harvard University, said in an email that the president can no more eliminate birthright citizenship “than he could wipe out the First Amendment (or the Second, for that matter).”
“Even Trump and his lawyers surely realize that this off-the-wall threat has the weakest possible legal legs to stand on and wouldn’t be likely to get the votes even of the most stalwart judicial conservatives,” Tribe said. “And they must realize as well that this threat, while legally all but empty, nonetheless strikes fear in the hearts of a vast number of legal immigrants and current citizens — both naturalized and by birth.”
Stephen Legomsky, chief counsel of the Department of Homeland Security’s Citizenship and Immigration Services branch during the Obama administration, delivered a similar message, saying Trump’s promised fiat is “clearly unconstitutional” — and designed for political effect.
“People look at this as another part of Trump’s all-out war on immigrants,” Legomsky, now a professor emeritus at Washington University School of Law, said by phone. “I think it goes further than that, because it’s the first time he’s declared war on native-born U.S. citizens.”
Legal experts are also highlighting an 1898 Supreme Court decision, United States v. Wong Kim Ark, which rejected the notion that a clause of the 14th Amendment — “subject to the jurisdiction thereof” — means the protections apply only to those in the country legally. Instead, the justices ruled that only two populations are excluded: children of foreign diplomats and enemy occupiers.
“Federal immigration law defines citizenship consistently with that decision,” said Stephen Vladeck, a law professor at the University of Texas. “So the president would have to purport to redefine both a federal statute and the 14th Amendment as interpreted by the Supreme Court. Even if he has some ability to do the former, he has none to do the latter.”
Amid the waves of criticism, several voices have stepped up in support of Trump’s push to scrap birthright citizenship — at least in concept.
Sen. Lindsey Graham (R-S.C.) on Tuesday said he intends to introduce a proposal to accomplish Trump’s goal legislatively. And Rep. Bob Goodlatte (R-Va.), chairman of the House Judiciary Committee, praised Trump for “talking about this important issue.”
“We will review it when it is released,” Goodlatte said in an email, referring to the executive order. “Addressing this issue in the long term, however, will have to be done through congressional action.”