Legally Speaking: Could Trump really end birthright citizenship?

Oct 30, 2018, 12:36 PM | Updated: 5:38 pm
President Donald Trump pauses while speaking at a rally at Southern Illinois Airport in Murphysboro...

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

(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.

Monica Lindstrom

Arizona State Courts Building (Arizona Governor's Office Photo)...
Monica Lindstrom

Legally Speaking: Brnovich appeal to Arizona Supreme Court makes sense

KTAR legal analyst Monica Lindstrom thinks it's a good move by Attorney General Mark Brnovich to petition the Arizona Supreme Court to hear his appeal in a case about laws that were ruled unconstitutional.
20 days ago
(File Photo by Matthew Hatcher/Getty Images)...
Monica Lindstrom

Legally Speaking: Why judge rejected Arizona ban on mask mandates

KTAR legal expert Monica Lindstrom explains the reasons behind a judge's decision to strike down Arizona's ban on face mask mandates.
21 days ago
(Facebook File Photo/Phoenix Police Department)...
Monica Lindstrom

Legally Speaking: Police may need to be part of Phoenix oversight office

Phoenix's requirement that no current or former law enforcement be part of a new police oversight office appears to be in direct conflict with recently signed Arizona laws, writes KTAR News legal expert Monica Lindstrom.
5 months ago
Monica Lindstrom

Legally Speaking: Arizona employees could be required to get virus vaccine

With coronavirus vaccines on the horizon, Arizona employers could require their employees to get the virus vaccine but there would be exceptions.
11 months ago
(AP Photo/Matt York)...
Monica Lindstrom

Legally Speaking: Maricopa County ballot lawsuit could have merit

KTAR legal expert Monica Lindstrom says the Maricopa County ballot lawsuit could have merit, whether it's for affecting ongoing races or correcting a procedural issue for the next election.
11 months ago
(KTAR News Photo/Kevin Stone)...
Monica Lindstrom

Legally Speaking: Why Arizona’s voter registration deadline was extended

A judge conducted a balancing test before ruling that Arizona's voter registration deadline should be extended, writes KTAR legal expert Monica Lindstrom.
1 year ago

Sponsored Articles


What you need to know about spine health

With 540 million people suffering from lower back pain, it remains the leading cause of long-term disability. That’s why World Spine Day on Oct. 16 will raise awareness about spinal health with its theme, BACK2BACK. “BACK2BACK will focus on highlighting ways in which people can help their spines by staying mobile, avoiding physical inactivity, not overloading […]
Day & Night Air Conditioning, Heating and Plumbing

Why fall maintenance is important for your heating system and A/C

It’s easy to ignore your heater and air conditioner when they’re working but the moment something breaks, you will likely regret not keeping up with maintenance. After all, if something goes wrong, you may be stuck with a repair that will take longer and be more expensive than simple maintenance.

More stroke patients eligible for acute treatment, thanks to research

Historically, patients underwent acute stroke treatments according to strict time guidelines. But thanks to recent advancements in stroke research, more patients are becoming candidates for clot-busting drugs and endovascular therapy at specialized centers like Barrow Neurological Institute.
Legally Speaking: Could Trump really end birthright citizenship?