Donald Trump has, not surprisingly, proposed a possible end to birthright citizenship through an executive order, specifically ending birthright citizenship for babies born in the United States to non-citizens and undocumented immigrant parents. The question begs, can Donald Trump repeal this Constitutional right of citizenship through executive order? Or will the executive order be overturned by the Supreme Court? The 14th amendment of the US Constitution states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.” This concept is based on something called jus soli, “right of the soil,” meaning children born in the US have a claim to citizenship, even if their parents lack legal citizenship documentation. Birthright citizenship is a Constitutional right outlined in the 14th Amendment and a long-standing practice in the history of our nation. So, could Trump change a Constitutional amendment via executive order? He, of course, claims he can. But the fact of the matter is, he probably cannot. He can sign the executive order, but the Supreme Court will likely overturn it quickly.
Many legal scholars argue that in order to repeal this birthright citizenship from our nation, the United States would have to amend the 14th Amendment through an act of Congress or must ask the Supreme Court to overturn its earlier interpretation of law and rule that birthright citizenship benefits of children born in the US go to only those whose parents are citizens and have arrived in the country legally. These scholars claim that the president cannot strike down the 14th amendment, or any constitutional amendment, via executive order. However, the president maintains the opinion that he has the power to strike down birthright citizenship on his own, through executive order. Trump boldly claims that we are the only country who allows a baby, born in our territory to non-citizen parents, be born a citizen. However, at least 30 countries practice birthright citizenship in their countries, including US neighbors.
Birthright citizenship originally sprung from the Supreme Court decision in Dred Scott v. Sandford. The 1857 decision said slaves, and the children of slaves, could not be citizens of the United States. After this controversial decision, the drafters of the 14th amendment declared in the first sentence that “all persons born or naturalized in the US, and subject to the jurisdiction thereof, are citizens of the United States.” Since then, birthright citizenship has been a practiced law in the United States, for people of every race and religion, without discrimination. The 14th Amendment affirmed that the fundamental rule of citizenship by birth includes all children, even those born to resident aliens.
Additionally, the president does not have legislative authority. The president’s powers, according to the Constitution, include “general administrative control of those executing the laws” in the Executive Branch. The president’s role is to see that laws are faithfully executed and the president is to provide guidance and supervision. This presidential power under Article II § 3, does not give the president the authority to become a lawmaker, which is essentially what Donald Trump would be doing if he were to sign this executive order, going against the 14th Amendment to the Constitution.
Republican House Speaker, Paul Ryan, agrees that the president cannot end birthright citizenship with an executive order. Ryan noted that any change to a constitutional amendment should be done through act of Congress. In response, Trump stated that Ryan should focus on keeping the house majority and not worrying about birthright citizenship, a topic Trump claims Ryan knows nothing about. Many legal scholars and professors, including University of Pennsylvania law professor, Kermit Roosevelt agree with Paul Ryan, however. He argues that ending birthright citizenship is a goal that the “president cannot accomplish through executive order.” He argues that the most the Trump administration could do in ending birthright citizenship is to argue for the administration’s preferred interpretation of the law. Once again, executive orders cannot amend statutes and the Trump administration cannot single-handedly end a centuries’ long practice.
There have historically been two kinds of executive order precedents since George Washington’s presidency. Presidents have signed executive orders that document written instructions to executive branch officials and have also written statements that communicate a presidential decision. Executive orders, however, have not historically been used to overturn a standing law, especially a constitutional amendment. Since birthright citizenship for all children born in the United States is enshrined in the 14th Amendment of the US Constitution, it cannot be taken away by executive order.
An example of how the Supreme Court has not allowed for executive orders that interfere with existing law is President Clinton’s 1996 EO. In 1996, DC court of appeals overturned President Clinton’s executive order preventing employers from hiring strike breakers. The DC Circuit concluded that this executive order interfered with employer’s rights to hire workers they choose to hire. The fact is, the president cannot overturn a constitutional right through executive order, even if he hates the right or even disagrees that it ever existed. Birthright citizenship predates the United States, it dates back to English common law. At a minimum, therefore, an executive order doing away with birthright citizenship would require a showing to the court that the citizenship clause of the constitution has been continuously misunderstood for centuries. This misunderstanding would therefore make the EO superior to the centuries-old practice of birthright citizenship to all babies born in the US. However, this is highly unlikely and the EO would be struck down immediately after it is signed.
In conclusion, Donald Trump’s executive order, if signed, will most likely be overturned by the Supreme Court. The separation of powers does not give the president lawmaking authority. Therefore, the president cannot single-handedly repeal or oppose a Constitutional amendment with an executive order, no matter how badly he wants to do so. The 14th amendment gave the right of citizenship to all babies born in United States’ territories. In order to change this, there has to be an act of Congress repealing the 14th amendment. In the meantime, however, children born in the United States will still be citizens and enjoy all rights of US citizens for their entire lives.