During an interview with Axios published this week, President Donald Trump signaled that he may attempt an effort to reinterpret the 14th Amendment of the Constitution to end birthright citizenship.
The move would mean that any children born in the United States by parents of non-citizens or of unauthorized immigrants would not receive citizenship status themselves. It would also produce a new Constitutional crisis: how exactly would we define citizenship? Many in this country take for granted that they’re American citizens, but they themselves only “earned” that right by being born here, or by having parents who were citizens here prior.
Despite these concerns, Trump defended his planned move, wrongly stating that it was a standard unique to America. “We’re the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits,” Trump said, per previous reporting from Inquisitr.
Trump is incorrect on that point: 30 other countries in the world also offer birthright citizenship.
The question for many legal scholars — convening immediately after Trump made this announcement — shifted to whether he could, in fact, issue an executive order to do so. Seemingly, that answer is no: an executive order cannot undo a Constitutional Amendment, and birthright citizenship is, for the time being, sealed within the 14th Amendment, according to Cornell Law School.
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
Yet there is a scenario in which Trump could feasibly get his way — and it all goes back to the confirmation hearings centered on nominating Associate Justice Brett Kavanaugh to the Supreme Court.
It would have to happen like this: Trump would first issue his executive order ending birthright citizenship. This would likely be challenged in federal courts, where the order would likely get tossed out for going against the Constitution.
But if the Trump administration wanted to, it could appeal that decision (or any subsequent decisions) all the way to the Supreme Court, allowing the decision to be decided by the now 5-4 conservative majority. If that conservative bloc wanted to, it could disregard the Constitutional amendment in favor of Trump’s executive order.
Doing so would go against the norms and traditions of the Supreme Court, of course, and it isn’t likely that all five of the conservative justices would go along with undoing the idea that the Constitution is the supreme law of the land. Then again, we also know that Kavanaugh — the latest addition to the Supreme Court — holds a viewpoint that would grant the president extraordinary power, according to reporting from Politico, making his recent confirmation even more damaging to the standing of the Court.
On the other hand, Chief Justice Roberts would be one major hurdle for Trump to jump over. While still a decidedly conservative justice, Roberts has signaled his willingness to buck his right-leaning colleagues in the past. Roberts has supported some left-leaning cases that made their way to the Court, including siding with liberals on the bench in a landmark case upholding the Affordable Care Act. As reporting from FiveThirtyEight.com pointed out this past summer, with Kavanaugh now on the Court, Roberts is the new swing justice (though again, still a conservative).
The short answer to the question of whether Trump’s executive order ending birthright citizenship will actually happen is that — it probably won’t, but could. It would require Roberts to bend his morals in ways that are uncharacteristic of his past behavior. Still, it’s not an impossible outcome, and Americans should be wary of any advancements toward Trump’s stated goal in the weeks and months ahead.