Trump’s proposal to end birthright citizenship is unconstitutional say both conservative and liberal lawyers.
The conservative George T. Conway III is of counsel at Wachtell, Lipton, Rosen & Katz (and husband of KellyAnne Conway). The liberal Neal Katyal is a partner at Hogan Lovells and former acting U.S. solicitor general in the Obama administration.
The fact that the two of us, one a conservative and the other a liberal, agree on this much despite our sharp policy differences underscores something it is critically important to remember during a time marked by so much rancor and uncivil discourse: Our Constitution is a bipartisan document, designed to endure for ages. Its words have meaning that cannot be wished away.
And what do they agree on? What Trump proposed to do is unconstitutional. The short of it is this.
… a constitutional amendment would indeed be necessary to revoke birthright citizenship. But no matter what, an executive order could never suffice, notwithstanding the president’s assertion to 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.” Whoever they are, they have it wrong. An executive order to reinterpret “subject to the jurisdiction thereof” could never pass muster because, if the Constitution provides any leeway to decide the meaning of that phrase, it provides it to Congress, and not the president.
The authors agree on the fundamental matter. The 14th amendment’s language is clear and not open to autocratic revision.
… the drafters of the 14th Amendment declared in their very first sentence, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The drafters were motivated by their utter revulsion toward slavery and a system that relegated people to subordinate political status because of their birth. They weren’t thinking of, or concerned with, any exceptions to birthright citizenship other than the absolutely essential.
And what they wrote was simple and clear. Both proponents and opponents of the language at the time knew exactly what it meant: Virtually anyone born in the United States is a citizen. In 1898, the Supreme Court affirmed just that: It held that the “Fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory” — “including all children here born of resident aliens.” The exception? “Two classes of cases” in which the United States could not apply its laws to foreigners under historic Anglo-American legal principles: “children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state.”
And about Trump’s claim that the U. S. is unique in its handling of birthright?
Judd Legum (popular.info) tells us not so. “At least 30 other countries also have birthright citizenship.”
… it’s an excellent example of how Trump manipulates the press to seize control of the narrative. Trump does not want people to talk about the Republicans’ legislative agenda over the last two years. The failed effort to repeal Obamacare and the successful passage of tax cuts for corporations and the wealthy are both very unpopular.
The larger point is that this is all smoke and mirrors. It will never happen. Trump may or may not issue such an executive order but, even if he does, it won’t go anywhere.
But Trump doesn’t care about that. He wanted to shift the conversation to what he perceives as a more favorable subject. And he knows how to exploit weaknesses in the media ecosystem to do it.