- Chip Somodevilla/Getty Images
- President Donald Trump has “zero authority” to end birthright citizenship by himself, immigration and legal experts say.
- Experts on Tuesday described his plan to do so via executive order as an attempt to garner support ahead of next week’s midterm elections.
- In the US, birthright citizenship is enshrined in the 14th Amendment to the Constitution.
- Legal experts strongly doubt the Supreme Court would rule in favor of the president.
President Donald Trump has “zero authority” to end birthright citizenship unilaterally, legal and immigration experts say, with one immigration lawyer describing his plan to do so via executive order as a “Hail Mary” meant to garner support ahead of next week’s midterm elections.
In an interview with “Axios on HBO” published Tuesday morning, Trump called the concept of birthright citizenship “ridiculous” and said it “has to end.”
“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States … with all of those benefits,” Trump said, falsely – more than 30 countries have laws providing for birthright citizenship.
Exclusive: Trump plans to sign an executive order terminating birthright citizenship, he said yesterday in an exclusive interview for "Axios on HBO." pic.twitter.com/D2RE4N4OrJ
— Axios (@axios) October 30, 2018
In the US, birthright citizenship is enshrined in the 14th Amendment to the Constitution, which says, “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.”
But Trump told Axios he didn’t think he needed to go about ending the practice with a constitutional amendment.
“You can definitely do it with an act of Congress,” he said. “But now they’re saying I can do it just with an executive order.”
Experts strongly dispute Trump’s claims.
‘The 14th Amendment is clear’
“Trump has zero authority to amend the Constitution through executive fiat, and he certainly can’t do it with a tweet,” Matthew Kolken, an immigration attorney in Buffalo, New York, told Business Insider on Tuesday.
Kolken added that it would be “virtually impossible” to amend the Constitution in today’s political climate. Changing an amendment requires either a two-thirds majority vote in both the House of Representatives and the Senate or a constitutional convention called for by two-thirds of state legislatures.
“It is also exceptionally unlikely that either of Trump’s nominees to the Supreme Court would rule that there is any ambiguity in the 14th Amendment, which provides for birthright citizenship,” Kolken said.
Greg Siskind, an immigration lawyer based in Memphis, Tennessee, described Trump’s desire to end birthright citizenship as an “extremist act” the Supreme Court is highly likely to reject.
“I think the 14th Amendment is clear in enshrining birthright citizenship in the law, and there is interpretive case law from the Supreme Court supporting this,” Siskind told Business Insider. “Even with a conservative Supreme Court, I have faith the Court will reject this extremist act.”
Siskind described the plan, as well as the Trump administration’s decision to send thousands of troops to the US border later this week, as “Hail Mary passes designed to thwart disaster” for Republicans in next week’s midterms.
“On the other hand, given the administration’s history, I’m not doubting they will still pursue these measures after the election,” Siskind added.
Mana Yegani, an immigration lawyer based in Houston, Texas, told Business Insider, “I think the President will do whatever he wants to please his base.”
If Trump issues an executive order to end birthright citizenship “there will be lawsuits from all over the country over equal protection,” Yegani added. She also believes the Supreme Court would ultimately deem an executive order of this nature unconstitutional.
With that said, Yegani is skeptical as to whether Trump will actually move forward with this plan. “We are on the heels of election so he is saying anything to get a few more votes,” she said.
‘This is blatantly unconstitutional’
Trump’s professed desire to end birthright citizenship was also decried by immigration activists and human-rights groups.
“This is a blatantly unconstitutional attempt to fan the flames of anti-immigrant hatred in the days ahead of the midterms,” the American Civil Liberties Union tweeted Tuesday. “The 14th Amendment’s citizenship guarantee is clear.”