Barack Obama’s embrace of lawmaking through executive order—“I’ve got a pen to take executive actions where Congress won’t,” as he once put it—was a degradation of the constitutional order and the rule of law. His executive orders accelerated after Republicans won control of the House of Representatives in 2010, and Obama presented them as a prescription for a “deadlocked” Congress (known otherwise as divided government). But his remedy only made government sicker, creating more chaos and disorder by way of the legal challenges that followed his orders and the threat that a future president could just as easily reverse everything he did.
Nowhere was this more acute than in the case of illegal aliens who arrived here as children. Frustrated by a stalemate on Capitol Hill in 2012, Obama issued an executive branch memorandum to defer action on deporting these young people—after having repeatedly claimed that he could not do so. The Deferred Action for Childhood Arrivals (DACA) program was challenged in court and became a political issue in the 2016 election when Donald Trump campaigned on repealing it. His administration did exactly that last year.
Public protests and legal challenges prompted the Justice Department to postpone action, while Trump called on Congress to pass a legislative fix. Predictably, Congress did nothing. The people whose residence and livelihood hinge on what happens to the program are in legal limbo—the ugly result of Obama’s circumvention of the separation of powers. It is a cautionary tale to politicians to respect the country’s republican guardrails. Actions taken unilaterally can be undone unilaterally.
Trump has failed to learn that lesson. While many of his early executive orders were the proper undoing of Obama-era regulations of doubtful constitutionality, Trump has engaged in his own acts of fiat governance. Consider for instance the first rollout of his ill-fated travel ban. Now, as the president revealed in an interview with Axios, he aims to abolish a longstanding practice enshrined by a widely held interpretation of the Fourteenth Amendment and confirmed by Congress: the right to U.S. citizenship by nearly any person born on American soil.
Asked by reporter Jonathan Swan if he believes so-called birthright citizenship can be revoked without changing the Constitution, the president replied it could—through executive order. “It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump said.
Swan replied that the concept was “very much in dispute.”
“You can definitely do it with an act of Congress,” Trump asserted. “But now they’re saying I can do it just with an executive order.” He added that he has spoken about the issue with his counsel: “It’s in the process. It will happen. With an executive order.”
It’s unclear exactly through what levers of the executive branch Trump intends to implement such an order or how far that order would seek to limit citizenship. And any executive order ending birthright citizenship is certain to be challenged in court. It is possible that Trump is simply testing the waters, as he often does with controversial ideas. The administration’s true aim may well be something less sweeping than “getting rid” of birthright citizenship. But the change the president described is a far bigger one than the DACA program ever was, and it is singularly improper to effect a change of such magnitude by executive order.
This is not to say that questioning the wisdom and constitutionality of birthright citizenship is unreasonable. In a recent issue of National Affairs, professors Peter H. Schuck and Rogers M. Smith, revisiting a case they first made in 1985, argued that the Fourteenth Amendment is less broad in granting birthright citizenship than the courts have deemed. The language of the 14th Amendment’s citizenship clause—granting the status to those born or naturalized in, and “subject to the jurisdiction of,” the United States—in their view does not apply to children of illegal immigrants. Because there is a lack of “mutual consent” between the government and parents who are in the country illegally, their children are not therefore “subject to the jurisdiction” of the United States. Schuck and Smith differ on the specifics of what their interpretation might mean in practice, but both agree it is Congress’s role to determine whether the children of unauthorized aliens should be considered citizens.
Jonathan Adler, a respected libertarian law professor, was unconvinced and pointed to an op-ed by a Trump judicial appointee. James Ho, a former solicitor general of Texas who now sits on the Fifth Circuit of the U.S. Court of Appeals, argued in 2007 that “birthright citizenship is a constitutional right, no less for the children of undocumented persons than for descendants of passengers of the Mayflower.” The question of whether illegal immigrants’ children born in the United States were “subject to the jurisdiction” of the U.S. government, Ho wrote, is a question of interpreting the 14th Amendment’s framers. Those post-Civil War senators clearly meant to exclude from citizenship the children of people not required by the common law tradition to follow U.S. law: ambassadors, foreign ministers, and (at that time) members of Indian tribes. The courts have upheld this interpretation, Ho insisted, most importantly in a 1898 Supreme Court ruling that determined the American-born son of Chinese immigrants was indeed a U.S. citizen.
The inertia of long tradition has probably settled the question for good, but there are serious legal arguments on both sides of the issue. What’s neither serious nor wise is to attempt a once-for-all solution by executive fiat, particularly given the fact that the next president with a different view could reverse it. Whatever the White House does, this is a question for Congress—and Congress can say so decisively.
In his interview with Axios, Trump complained the United States is “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. It’s ridiculous. It’s ridiculous. And it has to end.” In fact, dozens of other countries have some form of birthright citizenship, but the larger point is this: For all his America-First nationalism, the president has a murky view of American exceptionalism. Trump measures the value of a policy in strictly monetary and materialistic terms. He fails to appreciate what makes a person want to “come in.” Being born here means far more than having a right to welfare benefits. It means the opportunity to make something of oneself and one’s family. That is a beautiful and a noble thing in the world, and it is not ridiculous.
