Trump can't unilaterally end birthright citizenship, legal experts say

President TrumpDonald John TrumpCNN's Camerota clashes with Trump's immigration head over president's tweet LA Times editorial board labels Trump 'Bigot-in-Chief' Trump complains of 'fake polls' after surveys show him trailing multiple Democratic candidates MORE’s plan to end birthright citizenship through executive order has struck legal scholars not only as wholly unconstitutional, but reminiscent of a pro-slavery Supreme Court ruling that dates back more than 160 years.

“Dred Scott said enslaved people were not citizens and had no legal rights whatsoever,” said David Super, a professor at Georgetown Law, referring to the 1857 court ruling. “This is saying something very similar to the children of undocumented immigrants born in this country.”

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Legal experts say Trump’s suggestion that he could take action through executive order isn’t likely to hold up in court if he goes forward with it. Many analysts are viewing the president’s remarks, made public Tuesday in an interview with Axios, as a midterm tactic designed to drive Republican voters to the polls next week.

"He certainly can't override provisions of the Constitution by executive order,” said Stephen Wermiel, a constitutional law professor at American University Washington College of Law. “The question will really turn on whether the first part of the 14th Amendment is definitive and clear, which would work against him, or whether it’s got some ambiguity as to how it applies, which might work in his favor.”

Vice President Pence said in an interview with Politico on Tuesday that the Supreme Court has never ruled on whether the 14th Amendment applies to people who are in the country illegally.

“We all know what the 14th Amendment says, we all cherish the language of the 14th Amendment, but the Supreme Court of the United States has never ruled on whether or not the language of the 14th Amendment, 'subject to the jurisdiction thereof,' applies specifically to people who are in the country illegally,” Pence said.

Legal experts disagree.

“Nothing says the status of the parents matters,” Super said.

The first section of the 14th Amendment, which was ratified in 1868 and overturned the 1857 Scott decision, says, “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.” 

House Speaker Paul RyanPaul Davis RyanJuan Williams: GOP in a panic over Mueller House Republicans dismissive of Paul Ryan's take on Trump Amash's critics miss the fact that partisanship is the enemy of compromise MORE (R-Wis.) agrees Trump can’t end birthright citizenship through an executive order. He told Kentucky radio station WVLK it would involve a “very, very lengthy constitutional process,” according to media reports.

A constitutional amendment can be proposed either by the Congress with a two-thirds majority vote in both the House and Senate or by a constitutional convention called for by two-thirds of the state legislatures. A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the states.

Omar Jadwat, director of the American Civil Liberties Union’s (ACLU) Immigrants’ Rights Project, said the ACLU would likely challenge Trump’s order if he takes executive action.

“I think the question will get presented quickly if he moves forward with this and — again, quickly — the courts will rule against him," he said. “The notion the president would move forward with this really underlines his hostility to the rule of law, his hostility to the Constitution and to the principles that really make America great.”

It’s a dispute some say could make its way to the Supreme Court.

Ian Millhiser, justice editor for Think Progress, part of the left-leaning Center for American Progress, said in a blog post that the few scholars who think an executive order of this magnitude would withstand legal scrutiny are considered radicals even within conservative legal circles.

“If the Roberts Court ultimately upholds such an order, it will reveal that its Republican majority is so captured by partisanship that it cannot even be trusted to read the clear words of the Constitution,” he said, referring to Chief Justice John Roberts.

Millhiser drew comparisons to the Scott case earlier on Tuesday.

Prominent legal groups like the ACLU have said they will likely fight an order from Trump, but it's not clear whether it will come to that.

“We don’t have anything more than his words from last night or yesterday, so who knows if he’ll follow through, if this is a serious effort,” said Kamal Essaheb, director of policy and advocacy at the National Immigration Law Center – Immigrant Justice Fund. “Our sense is we’re getting down to the wire for the election and he’s got a couple cards to play, and they both say immigration and he’s playing them.”