On Tuesday, the website Axios reported that President TrumpDonald TrumpTrump goes after Cassidy after saying he wouldn't support him for president in 2024 Jan. 6 panel lays out criminal contempt case against Bannon Hillicon Valley — Presented by Xerox — Agencies sound alarm over ransomware targeting agriculture groups MORE wants to end birthright citizenship for the children of non-citizens and undocumented immigrants born in the United States. Birthright citizenship is the principle, enshrined in the 14th Amendment, that anyone born on American soil is automatically a U.S. citizen.
“It was always told to me that you needed a constitutional amendment (to change it),” Trump said. “Guess what? You don’t.” He explained that he planned to sign an executive order that would end the practice.
If the president follows through with this idea, it would represent a new low for an administration defined by heartless immigration policies.
An executive order targeting birthright citizenship would be blatantly unconstitutional and go against over 100 years of legal precedent. The only purpose of such an act would be to gin up Trump’s xenophobic base in advance of Tuesday’s elections.
The language of the 14th Amendment is clear: “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.”
In his Axios interview Trump said, “We’re the only country in the world where a person comes in and has a baby and the baby is essentially a citizen of the United States… with all of those benefits.” He called this “ridiculous” and stated that “it has to end.” Here again Trump is wrong: More than 30 countries, mostly in the Western hemisphere, offer birthright citizenship.
And birthright citizenship is not ridiculous at all. In 1868, lawmakers wanted to make sure that newly freed slaves received their full rights after the Civil War. Drafting the 14th Amendment, these lawmakers carved out exceptions from citizenship for the children of diplomats and for invading forces. They could have added an exemption for the children of the foreign-born, but they did not. So as many legal experts have pointed out, the Trump administration would have an impossibly high legal bar to clear in arguing that the Amendment’s drafters didn’t mean for it to include the children of the foreign-born.
The courts have been clear on the issue of birthright citizenship. From U.S. v. Wong Kim Ark (1898) to Plyler v. Doe (1982), there is over a century’s worth of case law affirming birthright citizenship and its benefits. The principle was also written into the 1866 Civil Rights Act. More recently, a 2012 report by the Congressional Research Service found that the 14th Amendment was "intended to extend U.S. citizenship to all persons born in the United States and subject to its jurisdiction regardless of race, ethnicity or alienage of the parents."
Trump’s idea of an executive order doing away with birthright citizenship is especially insidious when you consider whom it would be hurting the most: American-born babies.
It would strip them of their citizenship, creating a permanent second-class of people within our borders, which is exactly what the drafters of the 14th Amendment did not want. It would increase the size of our undocumented population by leading to a whole new category of people who are “illegal by birth.”
The only way to lawfully change birthright citizenship is through a constitutional amendment, requiring the approval of two-thirds of both chambers of Congress and ratification by three-fourths of the states; a constitutional convention; or if the Supreme Court decides upon a radical reinterpretation of the issue.
None of these scenarios is remotely possible right now, so why is Trump bringing up birthright citizenship?
The answer is because the midterms are less than a week away, and the president is pulling out all the stops in his attempt to rally his base around what he portrays as an immigration issue.
Never mind that the country is still reeling from the tragedy in Pittsburgh, or that ending birthright citizenship was for years regarded as a fringe idea promoted by extremists like Rep. Steve KingSteven (Steve) Arnold KingGOP brawls over Trump on eve of first Jan. 6 hearing Pence to visit Iowa to headline event for congressman Former Steve King challenger on rural voters in GOP states: 'They hate Democrats' MORE. Trump is dragging this ugly idea into the mainstream for his own political gain – as if putting children in cages, cracking down on asylum-seekers, and cutting refugee admissions weren’t already cruel enough.
True, any attempt by the administration to make this proposal a reality would ultimately lose in the courts.
To put it bluntly, no executive order can circumvent the constitution. Even GOP House Speaker Paul Ryan agrees: “You cannot end birthright citizenship with an executive order.”
Yet any legal challenges would likely lead to more divisive public discourse around immigration, which is probably what Trump wants.
Trump’s plan to end birthright citizenship is a dangerous political stunt. Coming before the midterms, this cynical move shows how little regard he has for our constitution and our American ideals of inclusiveness and equality.
Raul A. Reyes is an immigration attorney and member of the USA Today Board of Contributors. A graduate of Harvard University and Columbia Law School, he is also a contributor to NBCNews.com and CNN Opinion. You can follow him on Twitter at @RaulAReyes, Instagram: raulareyes1.