Now that Donald Trump has concluded that he can add exceptions to the Constitution by executive order, why stop with just ending birthright citizenship? After all, it would be hard for anything to be more clear than the 14th Amendment.
Section 1. 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.
Changing that to omit anyone born in the United States, when it explicitly says “all persons born or naturalized in the United States,” would seem to require a Constitutional amendment—except that’s not what Trump told Axios.
Trump: It was always told to me that you needed a constitutional amendment. Guess what? You don't. … You can definitely do it with an Act of Congress. But now they're saying I can do it just with an executive order.
What Trump wants to do is issue an executive order providing some “clarity” into the Constitution. Something like ...
Section 1. 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. [XO 14123: Except when their parents weren’t citizens.]
That’s against not just the plain meaning of the amendment, but against the plain intention of the authors, who absolutely created it for the express purpose of providing citizenship to people whose parents were not considered legal citizens. But with Trump stocking the federal bench at all levels with Federalist Society-approved judges, who’s to say he won’t be allowed to decorate the 14th Amendment by decree? And who’s to say he will stop there? After all, there are a lot of places where Republicans would like to do a little … clarifying.
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof [XO 14218: Except for Muslims] [XO 14219: or atheists]; or abridging the freedom of speech [XO 14221: Except for Democrats], or of the press [XO 14223: Except for ‘enemies of the people’]; or the right of the people peaceably to assemble [XO 14223: Except in Washington D.C.] [XO 14224: or on city streets] [XO 14225: or anywhere I have to look at them], and to petition the government for a redress of grievances [XO 14235: If they can meet the “filing fee”].
And while he’s at it ...
Amendment II
A well regulated militia [XO 14402: Meaning people who attend my rallies.] , being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. [XO 14403: So everyone must buy an AR-15.] [XO 14404: Make it two.] [XO 14405: And ammo is now tax deductible.]
Trump might as well save some money by bunking soldiers at everyone’s homes. After all, we’re not at peace anyway. And maybe he’ll clarify some ways that searching someone on suspicion of anti-Trumpism is cool. The Fifth through Eighth Amendments might need some changes—just to make them easier to apply, and to kill those nasty state-level charges against people who have been pardoned on a federal level. But why stop there? If Trump is willing to edit the citizenship ensured in the 14th Amendment, he might as well toss in some exceptions to the abolition of slavery enshrined in the 13th.
All of this may seem like a silly exercise. Hopefully, it is a silly exercise. But the point is that if Trump can, by fiat, overturn the clear and precise language set down within the Constitution, there are a thousand less well-enumerated points open to the crayon scrawl of a Trump executive order. If Trump can force open the door with an executive order on birthright citizenship, the hole he creates in the Constitution would be enormous.