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

Let’s all pack our bags because unless you are Native American, you came here illegally somehow.

Anonymous

Worth mentioning Supreme Court ruling that foreign occupiers children not included in birth right right.

Anonymous

I'd support the change in the law if we could make it retroactive to the time when Donald Trump's grandfather came to this country.

Anonymous

Birth Right Citizenship in the USA was not guaranteed for the passengers of the Mayflower. The USA didn't exist back then so no one had US citizenship rights.

Anonymous

And the Spanish had already been in Florida for 50 years, so the late-comers on the Mayflower didn't have first option to buy!

Anonymous

President Trump is not trying to change the Constitution via EO. He is setting the stage for the Supreme Court to rule on whether the children of illegal aliens are entitled to US Citizenship under the 14th Amendment.

Anonymous

No, he's stoking his base for the mid-terms to make voting dangerous.

Anonymous

This country is a democracy. Not ! Dictator. President Trump's try to turn this country into a dictator ship. For him self. By ! Try to change the Constitution of the Untied State. This country already went through a Civil war because of that. President Trump's a very dangerous man. We the people got to stand up. An fight against this dangerous President sat in the White House. Because! The Republicans party isn't gonna do not. The only way we can this. To vote Republicans party out of office. If they don't hear what the Americans people are say to than. We the people of Untied State run the country. Not ! ( Our representative ).

Anonymous- K Gi...

Hysterical article. I think you will be proven wrong. It was NOT intended for ‘tourists’ or random visitors or illegal entrants into US. The law was specifically aimed at granting citizenship to emancipated persons of color who had not been considered citizens and to guarantee their inclusion.

Martin Flaherty

Well-put. But one correction. Congress did not "pass" the 14th Amendment. Rather, it approved submitting it for ratification by three-fourths of the state legislatures, pursuant to Article V of the Constitution. This is why an Act of Congress, much less and Executive Order, cannot amend the Constitution.

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