George Conway, the husband of White House counselor Kellyanne ConwayKellyanne ConwayEthics watchdog accuses Psaki of violating Hatch Act Biden administration competency doubts increase Cook Political Report shifts Virginia governor's race to 'toss-up' MORE, co-wrote an op-ed on Tuesday rejecting President TrumpDonald TrumpMcAuliffe takes tougher stance on Democrats in Washington Democrats troll Trump over Virginia governor's race Tom Glavine, Ric Flair, Doug Flutie to join Trump for Herschel Walker event MORE's assertion that he could do away with birthright citizenship through an executive order.
"Such a move would be unconstitutional and would certainly be challenged. And the challengers would undoubtedly win," Conway wrote in The Washington Post with attorney Neal Katyal.
Conway, a self-described conservative, and Katyal, a self-described liberal, argued that the authors of the Constitution's 14th Amendment were "simple and clear" in drafting a provision that meant anyone born in the United States is a citizen of the country.
The two lawyers further cited a 1898 Supreme Court Case, United States v. Wong Kim Ark, in which the court ruled that "all children here born of resident aliens" were granted citizenship by birth, except in cases of foreign occupiers and foreign diplomats.
"Neither of those narrow exceptions supports what proposes to do by executive order,” Conway and Katyal wrote. “He is threatening, with the stroke of a pen, to declare certain people who are born in the United States ineligible for citizenship — despite the plain words of the 14th Amendment."
A key difference, critics have noted, is that in the 1898 case, both parents had established permanent residence in the U.S.
In an interview with Axios released Tuesday, Trump vowed to end citizenship for children of nonlegal residents born in the U.S., a change he proposed during the 2016 campaign, even though birthright citizenship is enshrined under the 14th Amendment.
Trump did not say when he would sign such an order, but it is the latest example of the president deploying hard-line rhetoric to gin up discussion about immigration in the closing stretch of the midterms.
Speaker Paul RyanPaul Davis RyanJuan Williams: Pelosi shows her power Cheney takes shot at Trump: 'I like Republican presidents who win re-election' Cheney allies flock to her defense against Trump challenge MORE (R-Wis.), Sen. Jeff FlakeJeffrey (Jeff) Lane FlakeFlake donating unused campaign funds to Arizona nonprofit focused on elections: report Biden nominates former Sen. Tom Udall as New Zealand ambassador Biden to nominate Jane Hartley as UK ambassador: report MORE (R-Ariz.) and Sen. Chuck GrassleyChuck GrassleyFill the Eastern District of Virginia On The Money — Progressives play hard ball on Biden budget plan Hillicon Valley — Presented by LookingGlass — Congress makes technology policy moves MORE (R-Iowa) were among the lawmakers who promptly refuted Trump's claim that he could unilaterally make such a sweeping change.
"Well, you obviously cannot do that. You cannot end birthright citizenship with an executive order," Ryan told Lexington, Ky., radio station WVLK on Tuesday.
Conway and Katyal wrote that the unconstitutionality of Trump's proposal serves as a reminder that the Constitution can be a unifying document in politically divisive times.
"The fact that the two of us, one a conservative and the other a liberal, agree on this much despite our sharp policy differences underscores something it is critically important to remember," they wrote. "Our Constitution is a bipartisan document, designed to endure for ages. Its words have meaning that cannot be wished away."