Trump’s executive order ‘worst means to go forward’ on ending birthright citizenship, says legal expert

Legal expert Jonathan Turley said Wednesday that President Trump’s vow to end birthright citizenship via an executive order would be the worst way to move forward on the issue. 

“I think that if it goes forward on an executive order, the president has picked the worst means to go forward,” Turley told Hill.TV’s Krystal Ball and Buck Sexton on “Rising.” “The better, the stronger case, would be with a Lindsey Graham-type of bill to go forward.”

The 14th Amendment has guaranteed since 1868 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.”

Many legal experts have argued that even with conservative Justices Neil Gorsuch and Brett Kavanaugh on the court, it will be extremely difficult for the administration to argue that an executive order outlawing birthright citizenship would be constitutional.

But Turley in a recent USA Today op-ed wrote that it is possible justices on the court could have a different view depending on how they interpret five words in the amendment that say the amendment is “subject to the jurisdiction thereof.”

“How Gorsuch and Kavanaugh would play on this is sort of interesting. The plain reading, the natural reading tends to support an unlimited birthright citizenship argument, and yet they’re both students of history, particularly Gorsuch, and he will look at what that clause means,” Turley told Hill.TV. 

“Words have meaning, and so courts don’t just take a clause like that and say ‘well it’s superfluous.’ Because if you take the clause out, then you certainly have unlimited birthright citizenship,” he continued.

“So the question is why did they put the clause in. What was the purpose of this language? That’s a historical issue, and historical record is mixed. I think people have to accept that from the passage 150 years ago, Congress has repeatedly, including these drafters, tried at various points to limit birthright citizenship,” he said. 

Trump’s vow to end birthright citizenship has widely been interpreted as a political ploy to drive his base to the polls since it comes just a week before the midterm elections. Yet the surprise declaration has unnerved many Republicans, who feel Trump may have hurt his party further in the fight for the House.

Speaker Paul Ryan (R-Wis.) said in an interview on Tuesday that the president cannot end birthright citizenship with an executive order. 

“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 told radio station WVLK. 

However, Sen. Lindsey Graham (R-S.C.), an ally of Trump’s on Capitol Hill, announced on Tuesday that he would introduce legislation to achieve Trump’s goal. 

— Julia Manchester

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