President Trump is now talking about changing birthright citizenship by executive order. Not only that, but he’s berating those who think this cannot lawfully be done – specifically, House Speaker Paul Ryan, R-Wis.
Ryan had commented that “You cannot end birthright citizenship with an executive order. We didn’t like it when [former President Barack Obama] tried changing immigration laws via executive action and obviously as conservatives we believe in the Constitution.”
Trump replied forcefully on Twitter: “Paul Ryan should be focusing on holding the Majority rather than giving his opinions on Birthright Citizenship, something he knows nothing about!”
One can certainly debate the merits of birthright citizenship as a matter of policy. Yesterday, we argued that the notion should be limited, so as not to include the children of illegal entrants or passers-through, such as tourists.
On the other hand, a number of voices – not just liberal ones but conservative ones as well – have pointed out that birthright citizenship gives new immigrants a stake in the United States. It encourages them to assimilate, which they actually do quite well in the U.S., in sharp contrast to Europe, where exclusionary laws that have encouraged the formation of an underclass living in culturally segregated ghettos and no-go zones.
Agree or disagree, the idea that a president can simply resolve the issue with an executive order is ludicrous. At the very least, it should alarm those who rightly looked askance as former President Barack Obama repeatedly abused his executive authority.
Fortunately, Obama was repudiated over and over again by the courts. With Trump as president, that same force of the third branch of government will likewise limit his ability to change the law with a simple stroke of the pen. And before you make the unfounded claim that Trump-appointed judges will simply rubber-stamp his views on immigration and even protect him from investigation (one of the early arguments against Justice Brett Kavanaugh before everyone lost their minds), first have a look at this succinct and well-reasoned 2006 article on the topic, written by a Trump-appointed judge.
James Ho, who now serves on the U.S. 5th Circuit Court of Appeals, makes a very strong case that an originalist reading of the 14th Amendment makes birthright citizenship a settled matter. Ho easily dispatches with any trickery surrounding the phrase that appears in statute and in the 14th Amendment itself, “subject to the jurisdiction, by noting that it merely excludes those representing foreign powers under diplomatic auspices. Appealing to Anglo-American legal principles, he states that the Citizenship Clause of the 14th Amendment “restored the longstanding English common law doctrine of jus soli, or citizenship by place of birth,” which had been wrongfully abandoned in the Dredd Scott decision.
In case there is any remaining ambiguity, Ho also points to the arguments made for and against the Citizenship Clause in Congress when the 14th Amendment was debated, and demonstrates beyond doubt that all sides of the debate, for and against, had the exact same understanding of what this part of the 14th Amendment would mean. It would include anyone born in the United States, no matter their race or the origin of their parents, excepting only “foreigners, aliens, who belong to the families of foreign ambassadors or foreign ministers accredited to the Government of the United States…”
When one senator objected that this would require mass naturalization of people of other races, such as the Chinese, Sen. John Conness, R-Calif., specifically acknowledged that yes, that would be a consequence, and it was one that he was happy to accept – that “the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.” No one disagreed that this would be the result of passing the amendment, and nothing in the language of the amendment itself contradicts this idea.
What does this mean? It means that a constitutional amendment would be required to end the practice of granting birthright citizenship. Executive orders cannot substitute for constitutional amendments, nor even for changes to the law, which also provides for birthright citizenship. And so if Trump wants to lose 9-0 at the Supreme Court – as Obama did many times when trying to expand his power – then an executive order on this matter would be one way to arrive at that result.
This all serves as a testament to the wisdom of the Founding Fathers in establishing checks and balances as they did against ambitious presidents hoping to make big changes. It also reinforces the wisdom of interpreting the Constitution exactly as it is written. That way, no one can dispute that its provisions mean exactly what people actually agreed to and understood them to mean at the time they voted for them. If the people of today have different ideas and values, then they are welcome to make further changes by going through the constitutional process for amendments.
