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

If he does it, great.
This means the president can be a foreign born president.

Anonymous

Really?? How stupid-- you are okay with millions of illegals coming into the country for the sole purpose of giving birth to get a social security card, close down hospitals, utilize free education and collect social security and welfare? !!! THis is the problem--people like you who know nothing!

Anonymous

Yeah well Lindsay "kiss my back cheeks" GRAHAM thinks HE can introduce legislation to do something with it.
Who loosened his lips ANYway. He's been acting like this for a MONTH now.
My Republican mom said God gave you two ears and one mouth because he wanted you to listen more than you talk.

Anonymous

Republicans and so-called Conservatives will deeply regret supporting Trump’s liberal view of the U.S. Constitution as “the supreme law of the land” [Article VI of the U.S. Constitution]. Ronald Reagan, Eisenhower and most real Republicans would have disagreed with this liberal view. If presidents are above the U.S. Constitution and above the law - an unAmerican concept - then any future president could “amend” the 2nd Amendment without satisfying the legally required constitutional amendment. (Reminder: we fraudulently used 9/11 to gut Americans’ constitutional rights, one can make a much stronger case to restrict gun rights if presidents are above the law and can bypass constitutional amendments). Any president could change “Eminent Domain” property rights (which the “conservative” U.S. Supreme Court has already started weakening without the legally required constitutional amendment process). Some Tea Party members have claimed that their 1st, 4th, 6th and 14th Amendment rights were violated by some agencies - they were apparently punished by government agencies for legal First Amendment exercises without constitutional due process. Allowing presidents extrajudicial authority to change the U.S. Constitution - without amendment - means these abuses will likely be far worse in the future. Former presidents have illegally claimed the right to torture, assassinate and lock up American citizens up without charge or trial. It’s also dumb policy politically, Medicare and Social Security will go bust without enough immigration. There needs to be more young people paying into the retirement system to support retirees. That math only works with enough younger immigrants paying those taxes and premiums. Do you really want a dictator or a president restrained by the U.S. Constitution and U.S. law? The next dictator may be from the other political party.

AnonymouS

Trump appears one step away from nationalizing the media due to national security concerns. That's the definition of Communism, the government take-over of private industry. If the government can pick and choose winners -- based on providing subsidy relief to some and not others -- that's a partial attempt at the same thing as taking over the companies' direction. If he shutters or take-over media corporations, Trump would kill off his purported fake news outlets that remain unnamed as of yesterday.

Dr. Timothy Leary

Has anyone noticed how much the president has been traveling lately? It appears to me that his handlers have been sending him around the country quite a bit. They figure he can do less harm if he is not in Washington, plus he likes all of the attention he gets from his Trumpniks.

Anonymous

wait...didnt he swear on the Bible to uphold this Constitution, not rewrite it?

AnonymouS

"They," the voices in his head, tell him that --NOW an executive order can change the 14th amendment of the Constitution. Still no chance of a 25th Amendment effort to right this ship?

Imagine this quick cycle of exchanging governmental letters: as the principal officers of the executive departments or of such other body (as Congress may by law provide), transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President immediately assumes the powers and duties of the office as Acting President; BUT then the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists and he will continue with the duties of his office. Ain't nothing getting done with this scenario of the 25th Amendment.

Anonymous

Perhaps Trump should include himself as a non-citizen since his mother was an illegal alien. I'm sure his father may be of dubious origins also.

Maj John James

ACLU is a bogus org... We are totally with the President and all of you are breaking the law. So many of you staffers are uneducated and have no clue how to fix anything .. Your statements are bogus as well...

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