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

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!

Krystal S.

I just am flabbergasted by this. What the hell is going on in Washington? And it's not all Trump. Its inactive Republican who know the law, its Democrats that can't seem to get their party under one unified banner, its uneducated citizens who dont know or care that the constitution is being violated.

Mister_Sterling

This needed to be ignored. The reason Trump trotted this out is because he doesn't want to talk about how his party is now the home for white nationalists., and largely responsible for the largest massacre of Jewish Americans ever.

Anonymous

Race-baiting is just getting old and tired. Please try an intellectual debate on the issues.

Anonymous redux

How is Trump “responsible” for the Pittsburgh temple shootings?

SgrA*

Orson Welles was thinking he could use broadcast media to present a story across the nation, that created neurosis, and in some cases chaos, as he gas-lit the country with "The War of the Worlds." After the 1938 broadcast, and as a result of the false interpretation of content in media, which foisted the most fantastical deception on the people ever aroused. And Congress investigated Mr. Welles because he was so successful as a puppet-master, that it seemed a threat that a person could put on such massive charade. You have to wonder, if today's news is presented by the same mouthpiece with the United State's President -- and man whose deceptions are accepted by Congress, and not investigated.

JAMES LEONARD PARK

BIRTHRIGHT CITIZENSHIP:
AUTOMATIC CITIZENSHIP
BY LOCATION OF BIRTH

When an American mother gives birth in Mexico,
is her child a Mexican?
If an American family is serving as missionaries in China,
are all of their children born in China citizens of China?
If a pregnant American woman is visiting Paris
and gives birth before her baby boy was expected,
is he a Frenchman because he was born in France?
If an American couple is visiting India
when the wife gives birth to a baby girl,
is their girl a citizen of India?

The answer to all of these questions is: NO.

Whenever American mothers
happen to give birth in another country,
each child is an AMERICAN
because the mother is an American.
That baby will be registered by the American embassy
as an American citizen born abroad.
(Sometimes the citizenship of the father
is also a factor in determining the citizenship of the child.)

This holds almost everywhere on Earth:
Any new child born is registered
as having the same citizenship as the mother,
no matter where that birth took place.

1. WHERE SOIL GIVES CITIZENSHIP

The United States and Canada
are two of the small number of countries
that grant automatic citizenship
to all BORN WITHIN THEIR BORDERS,
regardless of the citizenship of the mother or the father.

When a Mexican mother gives birth in the USA,
that child is automatically an AMERICAN citizen.
Under current law and practice,
the citizenship-status of the mother does not count.
All the child will ever need to prove American citizenship
is a birth-certificate showing a location of birth
somewhere in the United States of America.

2. ENDING BIRTHRIGHT CITIZENSHIP

But this 'birthright citizenship' could change.
Persons already alive should not lose their citizenship.
But the citizenship laws of the United States
could be modified to give all NEW babies
the same citizenship as their mothers:
When the mothers are clearly Americans,
so are all of their babies.
But when the mothers are citizens of other countries
(say England, Germany, Syria, or Russia)
then all of their children should automatically
become citizens of those same countries upon birth
---without regard to the geographical locations of these births.

In recent years, many other countries
have abandoned birthright citizenship.
They gave up the principle that all babies
born within the borders of a certain country
are automatically citizens of that country.

They simply changed their laws of citizenship.

3. IS BIRTHRIGHT CITIZENSHIP
ENSHRINED IN THE U.S. CONSTITUTION?

In the USA, changing birthright citizenship
might not be so easy.
Is birthright citizenship enshrined in the Constitution?

There are arguments on both sides.
And ultimately the U.S. Supreme Court
might be called upon to decide this issue.

Probably the President of the USA
cannot change birthright citizenship
by a simple executive order.

But quite possibly the law of citizenship
could be changed by the U.S. Congress
and signed into law by the President.

4. WAS THE 14th AMENDMENT
INTENDED TO GIVE BIRTHRIGHT CITIZENSHIP?

Shortly after the Civil War in the United States,
the U.S. Constitution was amended
to give FREEDOM to all the former slaves
and their children.
This was the 13th Amendment (1865).

But this Amendment omitted giving CITIZENSHIP
to the newly-freed former slaves and their children.
So this citizenship provision was added (in 1868)
in the 14th Amendment to the U.S. Constitution
(which also guaranteed a large number of other rights).

However, the specific words of the 14th Amendment
did not mention "slaves" or "former slaves".
But everyone then discussing this Amendment
KNEW that the people being considered were
the men, women, and children
who had recently been enslaved in the slave-states.
The Confederacy was defeated in the Civil War.
And the right of anyone to own or hold salves
was abolished forever in the United States of America.

The abolition of slavery and the granting of citizenship
SHOULD HAVE TAKEN PLACE AT THE SAME TIME
and by means of the same Amendment to the Constitution.
Then, there would never have been any confusion
about which persons are American citizens.

The WORDS of the 14th Amendment
refer to "all persons born in the United States",
but their MEANING could not have been meant
to extend to children born to unauthorized immigrants
because the concept of UNAUTHORIZED IMMIGRANT
was not yet possible.

Before any laws were created in the USA
restricting immigration (beginning in the 1880s),
it was not possible to distinguish
AUTHORIZED IMMIGRANTS from
UNAUTHORIZED IMMIGRANTS
because the borders were open for ALL IMMIGRANTS.

And everyone living in the United States
was assumed to be a citizen of the USA
---unless some other citizenship was established.

5. EARLIER HISTORICAL BACKGROUND:
IS A SLAVE A CITIZEN?

The Dred Scott decision by the U.S. Supreme Court (1857)
declared that the descendants of enslaved Africans
were NOT citizens of the USA.
Rather, they were the property of their owners.
In part, this led to the American Civil War (1861-1865),
which finally freed the slaves.

The freedom of former slaves was guaranteed
in the 13th Amendment (1865).
And their citizenship was guaranteed
in the 14th Amendment (1868).

6. WHAT ABOUT CHILDREN
BORN TO FOREIGN VISITORS?

The 14th Amendment does have this curious phrase:
"and subject to the jurisdiction thereof".
The purpose of this exception
was to avoid giving citizenship
to the children born to foreign diplomats
while that foreign family was living in the USA.

No one wanted the ambassador from Someplace
to start having American children
just because his wife was living with him in the USA.
The whole family was and would remain
CITIZENS OF THEIR HOME COUNTRY,
no matter how many children they had in America.

By inference, should this exception also apply
to other FOREIGN VISITORS living in the USA?
If foreign diplomats are not producing Americans,
why should we assume that non-diplomats
(who are citizens of other countries living in the USA)
are giving birth to American citizens?

As we saw at the beginning of this column,
American woman giving birth outside the USA
were never assumed to be giving birth
to citizens of whatever country
they were living in at the time.
No, they were all (correctly) assumed
to be giving birth to AMERICAN children.

Why not assume the same
for foreign visitors to the USA?
If we abolish birthright citizenship,
all pregnant women will be treated the same,
whether they are Americans
or citizens of some other country:
All babies will have the same citizenship as their mothers.

Anyone ready to READ MORE
about birthright citizenship,
can find more useful insights here:

https://s3.amazonaws.com/aws-website-jamesleonardpark---freelibrary-3puxk/CY-B-USA.html

Anonymous

Took me two seconds to scroll past you.

Anonymous

I truly hope you don't practice law... For we have found an idiot

Anonymous

You are not correct. I have six aunts and uncles. Both parents of all of them are American. Each of the six were born in a different country due to my grandfather's occupation. Each of them have dual citizenship both American and from whatever country in which they were born.

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