Trump Says He Plans To Take Question Of Birthright Citizenship To Supreme Court If Necessary

In a series of tweets on Wednesday, President Donald Trump continued to insist that birthright citizenship was a detriment to our nation and that he had the legal authority to end the practice through an executive order issued from his office.

The president also seemed to suggest his claims were backed up by respected legal minds, although he didn’t cite any in his postings on social media stating as such.

“So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other,” Trump wrote in a tweet on Wednesday. “It is not covered by the 14th Amendment because of the words ‘subject to the jurisdiction thereof.’ Many legal scholars agree.”

In a second tweet, he took aim at Democrats, putting blame on the party for “open borders” and insisting his methods were the best way to keep the nation secure. He also made it clear he was willing to push the issue all the way to the highest court in the country if need be.

“I will keep our Country safe,” he wrote in the tweet. “This case will be settled by the United States Supreme Court!”

Can President Trump use an executive order to end birthright citizenship?

No — Trump would need Congress to amend the Constitution or the Supreme Court to overturn its prior interpretation of the law. https://t.co/sX8PwwiDKe

— NPR Politics (@nprpolitics) October 30, 2018

Trump’s suggestion that the wording in the 14th Amendment “subject to the jurisdiction thereof” would allow him to change the rules is somewhat dubious, however, given the Supreme Court’s long history of viewing any child born in the U.S. as a citizen. As long ago as 1898, children of immigrants born in the country were considered as such, according to Justia.

Indeed, the phrase that Trump refers to is more a guideline for which children don’t deserve citizenship protections — and it’s a very narrow list. Children of diplomats who are born within our borders, for example, who are subject to the laws of their home country and not the United States, are not granted citizenship rights, according to Cornell Law School’s research on the subject.

Most legal scholars agree that, barring a significantly different interpretation of the law by appellate courts and the Supreme Court, only a Constitutional amendment, and not an executive order, can change the rules on who can become a citizen. Even a judge that Trump himself appointed this year thinks so.

“Birthright citizenship is guaranteed by the Fourteenth Amendment,” current U.S. Circuit Judge James C. Ho wrote in 2006, according to reporting from the Washington Post. Ho, who was appointed in January, added that citizenship rights are to be “protected no less for children of undocumented persons than for descendants of Mayflower passengers.”