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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Dr. Timothy Leary

If it wasn't for the ACLU, Mr. James, you would not be able to march in the gay pride parade anymore.

George M

Want to bet we can stop people from getting citizenship through Chinese and Russian citizenship factories? Just you watch! Hold my beer suckers!

Sheryl

According to many scholars, the 14th Amendment was meant for slaves. It specifically goes into those "subject to the jurisdiction". It also made clear it was not intended for diplomats and those still citizens from elsewhere. You can dislike it if you like, but you cannot in good conscience just deem this to be impossible. It will be up to the Supreme Court to read all the information and interpret the founders intent, but as usual, the ACLU just reacts in knee jerk fashion because they are no longer about law, but just another anti-Trump, "resist" group.

Anonymous

So you just ignore all court precedence on the books from 150 years ago to date -- what kool-aid are you drinking?

Debra Nelson

Thank you ACLU for pointing out Trump's obtuseness for those too dense to see it for themselves. His ignorance is only surpassed by his arrogance. To quote former CIA Director John O. Brennan, "When the full extent of your venality, moral turpitude and political corruption becomes known, you will take your rightful place as a disgraced demagogue in the dustbin of history".

Anonymous

Oh so that means he can change your stupid archaic gun laws awesome!!!!!

Anonymous

Change the 2nd Amendment by Executive Order . . . why didn't Hillary think of that?

Mark Jaycox

Time's have changed and our Constitution must change to protect against those using our Constitution against us.

Anonymous

ACLU any sitting us president can challenge the constitution and attempt to change outdated policy
president trump will succeed because the 14th amendment did not include all foreign entities
and if you were to disassemble the words it only pertain to the time and place it was forged
the superior court will interpret that is was for slaves being considered as beings nothing else
blame our forefathers for not including what they did not for see and you can't change that

GAME OVER

Lance Haley

As a fellow federal criminal defense practitioner, I have an enormous amount of respect for the ACLU and it's lawyers. But I am afraid you all have met your match.

The Konstitooshuunal Scollar_'n_Cheef has a law degree from Trump University. Moreover, rumor has it that since Michael Cohen suddenly turned into a "liar", Jacob Wohl is now the *president's acting "law whisperer".

I hope the ACLU is not quaking in your boots to much....

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