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Legally Speaking: Could Trump really end birthright citizenship?

President Donald Trump pauses while speaking at a rally at Southern Illinois Airport in Murphysboro, Ill., Saturday, Oct. 27, 2018. (AP Photo/Andrew Harnik)

President Donald Trump has resurrected a statement he made during his campaign that he will sign an executive order to take away the “birthright citizenship” guarantee contained in the 14th Amendment to the Constitution. This leads to many questions, such as: What does the 14th Amendment say, what is the birthright guarantee and can Trump actually be successful?

The 14th Amendment to the Constitution states, in part: “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.”

A plain reading of these words indicates that if you are born on U.S. soil then you are a U.S. citizen. For example, if you are born in Phoenix, you are a citizen of the U.S. and of Arizona. Simple. That is the interpretation our country has been working under since the 14th Amendment was passed by Congress in 1866 and ratified by three-fourths of the states in 1868.

These words in the 14th Amendment are affectionately referred to as the “birthright guarantee.” Trump appears to believe our country has been mistaken all these years by giving U.S. citizenship to babies born of illegal immigrants, and wants to sign an executive order to end that guarantee or at least modify it.

An executive order is issued by the president, has the force of law and must be followed. However, every executive order issued must have a basis in law or the Constitution. If it does not, then it is arguably invalid. A president may issue an executive order but it is the courts that can determine its validity.

Trump has attempted to make law with an executive order before. (Remember the so-called travel ban?) He issued an executive order that was almost immediately challenged in the courts. Trump argued he had the authority under the Constitution and/or the law to issue the order, opponents argued he did not. Ultimately, Trump prevailed in some respects and lost in others.

Just like the travel ban, if the birthright guarantee revocation (my words, not his) is issued, it will immediately be challenged in the courts and Trump will have to prove there is a legal basis for his order.

Opponents of the order will argue the plain language of the 14th Amendment does not have a qualification in front of, or behind, the word “persons.”  It does not say persons “born of U.S. citizens” or something similar. They will also argue the president does not have the authority to change an Amendment, or create a new one; only Congress and the states can do that. These arguments are very persuasive.

Those who support the executive order will argue the courts have not ever addressed the issue of whether persons born on U.S. soil to illegal immigrants are deemed “persons” under the 14th Amendment.  They will argue the president has the authority to enforce immigration laws and dictate how those laws are carried out on a day-to-day basis.  They will have to draw the line connecting the 14th Amendment to immigration law to make this argument strong.

By now you might believe there is no way Trump’s proposed executive order could hold up in a court of law, but, it just might. The Constitution is a living document, meaning it was arguably written with the intent that it could change and adapt to the circumstances the U.S. finds itself in at any given time. It could be argued the current state of our immigration system and the influx of immigrants is a changed circumstance that necessitates an different interpretation of the 14th Amendment, a limitation, or perhaps even a new amendment.

Although any legal challenge would start in the federal courts, it is very possible it would wind its way up to the Supreme Court. The Supreme Court would have the final say in the validity of the executive order and the interpretation of the 14th Amendment. This is a perfect example of why Supreme Court justices and why confirmation hearings matter, but I digress.

The Supreme Court could determine the validity of Trump’s executive order but it cannot create a new Amendment. To put it simply, to revoke or change the 14th Amendment, or to create a new amendment, there must first be a proposal. A proposal must be adopted by two-thirds of both the Senate and the House and then it is sent to the states for ratification. The proposal is ratified if approved by three-fourths of the states’ legislatures. (There is also the possibility of using a national convention or state ratifying convention.)  

As you can see, it would be extremely difficult for all these steps to be successful.

Here is the bottom line, #LegallySpeaking: Trump could issue the executive order limiting the 14th Amendment but it would be immediately challenged in the courts with the courts putting a stay, or a hold, on the order. The arguments for and against the executive order would be intense and lengthy.

At the end of the day, Trump could get his way with some type of limitation or qualification though I believe he has a very difficult road, both legally and politically, to travel down.