No, Mr. President. You Can’t Change the Constitution by Executive Order

President Trump said this week that he is preparing an executive order to try to take away the citizenship guarantee in the 14th Amendment to the Constitution, which says that people born in the United States are United States citizens. On Tuesday, Sen. Lindsey Graham announced that he would introduce legislation with the same aim.

But the president cannot repeal part of the Constitution by executive order. And Congress cannot repeal it by simply passing a new bill. Amending the Constitution would require a two-thirds vote in both the House and Senate, and also ratification by three-quarters of the states. The effort to erase the citizenship guarantee will never clear those hurdles — for very good reasons. 

Birthright citizenship is one of the bedrocks of this country. More than 150 years ago, the 14th Amendment guaranteed to all those born within the United States citizenship, without regard to parentage, skin color, or ethnicity. And the Supreme Court ruled, more than 100 years ago, that the citizenship guarantee applies fully to U.S.-born children whose parents have no right to citizenship. 

Before the amendment was enacted, American citizenship was controlled by the abhorrent 1857 Supreme Court decision Dred Scott v. Sandford. In that case, the justices found that Black people born in the United States were not citizens, but rather a “subordinate and inferior class of beings” with “no rights or privileges but such as those who held the power and the Government might choose to grant them.” Neither slaves, nor freed slaves, nor their descendants could ever become citizens, the justices ruled. 

After the Civil War, Congress overruled Dred Scott by passing the 14th Amendment. The definition of citizenship is part of its very first sentence: “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 one sweep, the clause guaranteed citizenship to previously enslaved people and their children — and ensured that the law would never again perpetuate a multigenerational, permanent underclass of individuals barred from American citizenship. 

In 1898, the Supreme Court confirmed that the 14th Amendment guaranteed citizenship to all children born on U.S. soil, no matter what their parents’ status. In United States v. Wong Kim Ark, the justices found that a baby born in San Francisco to parents who were citizens of China — and subject to the Chinese Exclusion Act, which prohibited them from becoming U.S. citizens themselves — was automatically a citizen at birth. The court specifically rejected the argument that a child in those circumstances was not “subject to the jurisdiction” of the United States, and thus excluded from the Constitution’s citizenship guarantee.

Only a few categories of people are excluded: children of foreign diplomats, children of enemy soldiers present in the U.S. during an occupation, and children of Native American tribes, who have American citizenship under a separate provision of law.

At least since 1898, there has been no serious question about whether children born in the United States can be denied American citizenship because of the status of their parents. James C. Ho, who was recently appointed by President Trump to the Court of Appeals of the Fifth Circuit, has written that citizenship “is protected no less for children of undocumented persons than for descendants of Mayflower passengers.” Similarly, Walter Dellinger, who was assistant attorney general in the Clinton administration, told Congress in 1995 that legislation to nullify birthright citizenship was “unquestionably unconstitutional.”

Of course, Dellinger acknowledged, "Congress is free to propose, and the states to ratify, any amendment to the Constitution. Such naked power undeniably exists.” Yet the Constitution stands for certain enduring principles, as he said in testimony before the House. “For us, for our nation, the simple, objective, bright-line fact of birth on American soil is fundamental.”

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Anonymous

Good, it's about time the POTUS stands up to this BS. Go ahead and try to fight him ACLU, you will lose in the end (again).

Anonymous

The current administration is completely obtuse to how our government works and what they can legally do. This attempt to modify the constitution without 2/3 majority vote from the house and Senate, along with 3/4 of all states ratifying is unconstitutional and illegal full stop.

Anonymous

You sir have swallowed the red pill. Get plenty of rest and prepare to have the nuts cut off your fair haired child when Congress starts sending out subpoenas the day after the new one is sworn in. We are done with a "president" who incites acts of domestic terrorism.

Anonymous

I simply do not understand your comment.
"Good"?
What's "good"?
That Trump tries to contravene the laws of the land? How is that "good"?

Anonymous

Well if you read the ACLU lawyers names you will see why they take care of illegal aliens better than AMERICAN CITIZENS. Change the the 14 amendment so that illegal aliens children cannot become citizens. It is time to take back our country from illegal aliens and deported all back to their countries and take their children with them. Also deported all TSP and unaccompanied children back to their own countries.

Anonymous

Lol

Anonymous

This so called “president” , who during his campaign refered to himself as “the law and order president”, does not consider himself subject to written laws of any kind. This “BS” that you refer to, IS the law of this land. If you, or Donald, wants to change this law, it won’t be done through a executive order or a tweet

Anonymous

14th Amendment to the Constitution Was Ratified
July 28, 1868
On July 28, 1868, the 14th Amendment to the United States Constitution was ratified. The amendment grants citizenship to "all persons born or naturalized in the United States" which included former slaves who had just been freed after the Civil War. The amendment had been rejected by most Southern states but was ratified by the required three-fourths of the states. Known as the "Reconstruction Amendment," it forbids any state to deny any person "life, liberty or property, without due process of law" or to "deny to any person within its jurisdiction the equal protection of the laws." No, he can't amend the constitution, he can write an executive order barring them from entry into the US but once they are here they can become citizens. A. The repeal of any part of the Constitution requires an amendment to the Constitution — this includes the repeal of a previously passed amendment. So, the process is well defined in the Constitution, and is detailed on the Amendment Page. In reading that page, you can see that you were almost right — the biggest mistake you made is that the President is not involved in the amendment process in any way. See also: https://www.usconstitution.net/constnot.html#execord executive orders.

Anonymous

Ummm... I hope you don't practice law....

Anonymous

You left out a very important part of this amendment - ". . . subject to the jurisdiction thereof. . . ". "Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Slaves WERE subject to the jurisdiction of the US; babies whose parents are not citizens or legal residents are NOT, because their parents are subject to the jurisdictions of the country from which they came. This section has been argued in court in different ways; perhaps Trump would like it to be argued again and settled once and for all. If those who wish to enter our country do so legally, agree to assimilate and take steps to become citizens, fine. Otherwise, don't come. Many in the cavavans carry their own country's flag, and have no intention to assimilate, and we will have NO country if we just let everyone in. Poll after poll shows that the majority of Americans want a stop to illegal immigration, as well as e-verify and other checks before allowing persons into our country. Every other country on the planet does some form of the same thing!

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