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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Sheena Pettit

What has to happen to file a petition in court?

Anonymous

all president trump has to do is sign an Executive Order and someone to challenge his power
in the lower courts it will then reach the high courts and then ultimately the supreme court and interpret
the words GAME OVER

Anonymously

It is just sad to see how many people here, no matter what position they hold, cannot see what America was built on.

Anonymous

The Constitution was written with the knowledge and situation of the time. Some of it may need to be addressed. Consider this scenario: A child born in Germany to US citizens serving in the US military.... serving their country... can NOT ever become a US President. A child born in the US to illegal immigrants CAN become a US President one day. Seems weird to me....

Anonymous

The Constitution was written with the knowledge and situation of the time. Some of it may need to be addressed. Consider this scenario: A child born in Germany to US citizens serving in the US military.... serving their country... can NOT ever become a US President. A child born in the US to illegal immigrants CAN become a US President one day. Seems weird to me....

Anonymous

Weather or not the constitution is being violated has yet to be determined, it hasn’t really be challenged and I suspect this is an attempt to get the Supreme Court to weigh in and set some precedent now that the Supreme Court is not full of activist judges. Grab some popcorn this is getting good!

Anonymous

1) This is exactly why we have a constitution, to stop the attempt to seize complete control over the government and laws of this country by any one person or group.
2) Perhaps we should require that all politicians be able to pass a basic test on the constitution before allowing them to take office.

PERSON OR PERSONS

THIS IS JUST MORE ABUSE FROM CRIMINALS RECEIVING ILLGOTTEN GAINS WHILE COMMITING A CRIME. THE SCALE OF THE PROBLEM HAS REACHED A POINT OF ENOUGH IS ENOUGH.
IT'S NOT A DISCRIMINATION OR PROFILING ISSUE. IT'S A CRIMINAL HUMAN TRAFFICKING RACKET ISSUE. AND THE PRIMARY SUSPECTS "ILLEGAL ALIEN'S" KNOW THEY ARE BREAKING THE LAW....THEY JUST DON'T GIVE A SH#T.

Anonymous

The president is doing what he always does...stirring the pot to get the general populace away from the important items in this case elections. By the time he leaves office he may better understand the policies under which this country operates!!

Anonymous

To even contemplate such a despicable act again reaches a new low for this president and his administration. He cannot destroy the foundation of this country, and every person must ensure that is not allowed to turn our democracy to the dictatorship that he believes we are. What about those born abroad and are granted US citizenship because of their US parents? Does this exempt them from "acts of evil", or those who continue to kill and harm others because of their hatred and are already US citizens. Does this give them the right to be violent and commit horrid crimes? This is disgraceful and hopefully there are still those in power who will never allow this to happen. Thank you ACLU!

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