President Trump on Tuesday said that he will sign an executive order to end the practice of birthright citizenship, potentially setting up a new battle for Trump at the Supreme Court over the 14th Amendment.
Birthright citizenship is enshrined in the 14th Amendment to the Constitution, which states: “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.”
“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump said during an interview with Axios.
“You can definitely do it with an act of Congress. But now they’re saying I can do it just with an executive order,” the president added, before stating incorrectly: “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.”
“It’s ridiculous. It’s ridiculous. And it has to end,” Trump said about the right of citizenship granted to anyone born within the country’s borders. “I didn’t think anybody knew that but me. I thought I was the only one.”
Rep. Eric Swalwell (D-Calif.) ripped into Trump’s planned executive order.
“Put this in perspective. @realDonaldTrump is willing to delete a passage from the Constitution to target people who don’t look like him,” Swalwell tweeted.
Legal experts strongly dispute Trump’s assertions.
“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,” since it would require either a two-thirds majority vote in both the House of Representatives and the Senate or by 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.
“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,” said Greg Siskind, an immigration lawyer based in Memphis, Tennessee. “Even with a conservative Supreme Court, I have faith the Court will reject this extremist act.”
“This is a blatantly unconstitutional attempt to fan the flames of anti-immigrant hatred in the days ahead of the midterms. The 14th Amendment’s citizenship guarantee is clear,” the American Civil Liberties Union tweeted Tuesday.