President Trump has revived a particularly unconstitutional campaign promise just in time for the midterms: He says he’s going to single-handedly end birthright citizenship, established in the Constitution’s 14th Amendment, with an executive order. Some would call it a “controversial” campaign promise, but there’s no real controversy over whether Trump can follow through; this is all just high-profile posturing.
Only a constitutional amendment could end birthright citizenship. The language of that amendment’s citizenship clause is unambiguous.
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.
Just to propose a change to the Constitution requires either two-thirds of both the House and Senate or two-thirds of state legislatures. Ratification requires three-quarters of state legislatures or state ratifying conventions.
Yet Trump returned to the topic in a “bombshell” interview with Axios. The exchange was, to be charitable, suspect—at least from a journalistic perspective. As Libby Watson points out at Splinter, Jonathan Swan’s questions for Trump come across not so much like an interview as they do a set-up.
Swan’s subsequent tweets about the interview did little to change the perception that he’d all but cooperated with the administration in using the interview as a means of reviving the birthright citizenship debate.
There’s nothing new about this facet of Trump’s bigoted rhetoric. What’s new, potentially, is the seriousness with which others are taking it. Swan may have played to Trump, but that doesn’t mean anyone else should. Turn back to the midterms. Trump’s announcement—just a week before the midterms—smacks of yet another well-timed, reality TV-style story arc.
Following the Kavanaugh debacle, the enthusiastic support of Republican Sen. Lindsey Graham does little to dispel the idea that Trump’s just engaging in yet another base-galvanizing publicity stunt. Granted, Graham’s been agitating to end birthright citizenship—or at least to drum up votes around the issue—for a decade along with Iowa Rep. Steve King, an avowed white supremacist.
Like Trump, Graham spouts the fallacy that the United States is alone in granting citizenship by right of birth. The reality is, 30 countries—including Canada and Mexico—offer birthright citizenship.
What Trump may not have anticipated—that’s not to say he cares—is how quickly some fellow Republicans have disavowed his threatened executive order. Michigan Rep. Justin Amash rejected Trump’s attack on birthright citizenship outright.
Florida Rep. Carlos Cubelo took aim at Trump’s claim and added a call for immigration reform.
Amash and Cubelo probably don’t need to worry. There are any number of indications, beyond the interview set-up and timing, that Trump’s attack on birthright citizenship is performative, not substantive.
First, it’s unconstitutional AF. As Ian Millhiser of ThinkProgress writes:
Trump’s plan is unconstitutional. It’s not even arguably constitutional. It is so obviously unconstitutional that it was rejected by a notoriously racist Supreme Court more than a century ago. The few scholars who think that Trump can actually do this are considered radicals even within conservative legal circles.
Contrast this with the New York Times, which has inexplicably painted the viability of Trump’s proposal as less than clear.
Doing away with birthright citizenship for the children of undocumented immigrants was an idea Mr. Trump pitched as a presidential candidate, but there is no clear indication that he would be able to do so unilaterally, and attempting to would be certain to prompt legal challenges.
Admittedly, Trump may want this fight. If he attempts to end birthright citizenship by executive order, he will provoke the kind of constitutional crisis he’s so far stopped just shy of. Perhaps he wants to avoid such a crisis; more likely, Trump was waiting for a Supreme Court that will back him. Still, this doesn’t seem like the battle to pick. As Millhiser points out, it’s only fringe conservatives who support the notion that Trump can unilaterally end birthright citizenship. If nothing else, this isn’t how Chief Justice John Roberts wants to be remembered.
The second problem with attacking birthright citizenship is, well, common sense, economically and socially speaking. It’s not that either has been an overriding concern of Trump’s, but that he’s more likely to encounter significant resistance from both parties if he pursues an end to birthright citizenship as more than a mid-term stunt.
It’s beyond reasonable debate that birthright citizenship does not drive undocumented immigration, but that’s the sort of fact Republicans just don’t acknowledge. Perhaps they could be forced to consider, however, the implications of ending birthright citizenship for those already here. As Garrett Epps notes, “it would at a stroke create a shadow population of American-born people who have no state, no legal protection, and no real rights that the government is bound to respect.”
The third, and simplest problem: The GOP needs Latinx votes. An all-out attack on birthright citizenship will alienate not just undocumented immigrants and those related to them but a significant portion of the Latinx population (including this Latinx).
What Trump proposes is unconstitutional, disastrous, and even politically disadvantageous. It is also clearly contrary to the intention of the 14th Amendment and an open statement of racism.
Birthright citizenship has existed for 150 years in the United States. It existed in Britain before that. It came into existence out of necessity, as a refutation of Dred Scott v. Sandford, which defined citizenship based on race. The amendment of which it is part also guarantees rights to “any person,” as opposed to just “citizens of the United States.” These clauses are just as clear as the language granting citizenship based on birth. Trump’s rhetoric could not more obviously contravene the framers’ intent.