In an interview with Axios this week, President Donald Trump floated the idea of ending birthright citizenship. Trump said he is considering an executive order repealing the grant of citizenship to children of non-citizens who are born in the U.S. The proposal comes just one week before Election Day. How could an executive order circumvent the Constitution? Does the president have that authority to make this change?
Stephen Vladeck is a professor of constitutional law at the University of Texas School of Law. He says the possibility that a president could unilaterally end birthright citizenship is unlikely.
“The relevant constitutional text is section one of the 14th amendment, which says that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States,” Vladek says. “The president cannot change that by himself.”
Vladeck says the Supreme Court has previously held that the language of jurisdiction in the relevant article of the 14th Amendment applies to all who live in the U.S., lawfully or not, apart from foreign diplomats. The court’s precedent, Vladeck says, was established on the basis of a child whose parents were citizens, but that the intention of the law was not to distinguish between people who were lawfully in the U.S. and those who were not.
“It’s actually meant to distinguish those that are here in their own capacity and those that are here solely in some kind of foreign diplomatic representation role,” Vladeck says.
This catalyst for the 14th Amendment was the Dred Scott decision in 1857, as well as the citizenship limbo freedmen –former slaves – found themselves in after the Civil War. The Dred Scott decision held that freedmen were not U.S. citizens for federal purposes. Vladeck says the precedent established in Dred Scott was overruled in the first sentence of the citizenship clause in the 14th Amendment.
“No matter what your history, no matter what your lineage, even if you had grown up in bondage in a state that treated you like property, you are still a citizen,” Vladeck says. “You are a citizen by dint of the fact that you were born here.”
Trump was made his comments about birthright citizenship in the context of a media interview, with no real plan to following through. Vladeck says that although an order ending birthright citizenship would be challenged in court, the Constitution does provide ways Trump could achieve his goal.
“It would be a lot more convincing if instead of saying he’s going to do this by executive order, the president actually took the legally appropriate step of proposing a Constitutional amendment that would change the language of Section One of the 14th Amendment,” Vladeck says. “The reality might be that such an amendment would actually get through.”