Merely days before the midterm election, President Donald Trump proposed along the campaign trail using an executive order to end birthright citizenship. Though Trump’s statements prompted news headlines across the country, it seems that since the election his suggestion has been all but forgotten.
While the media may have moved on from this topic, this is an issue that’s worth a second look. Although the details of Trump’s bold proposal remain unknown, one thing can be certain: birthright citizenship is here to stay.
Birthright citizenship in the United States is shadowed by the dark history of American slavery and the Civil War. Shortly after the end of the war, freed slaves found themselves entrapped again by restrictive laws passed by Southern states' legislatures.
These laws aimed to secure the cheap labor of freed slaves, which the Southern economy relied heavily upon. In response to this Southern resistance, Congress passed the 13th and 14th Amendments during the Reconstruction Era which expanded the right of African Americans through new means, such as birthright citizenship.
The 14th amendment reads, "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…"
Essentially, this means that any person born upon U.S. soil has the rights of a U.S. citizen. This concept, known as birthright citizenship, has been repeatedly upheld by the U.S. Supreme Court in cases like U.S. v. Wong Kim Ark. In this case, the Supreme Court ruled that Wong Kim Ark, born to Chinese citizens who were legally residing in California, was, in fact, a U.S. citizen given that he was born upon U.S. soil. This landmark has case secured birthright citizenship for countless second-generation American immigrants since its monumental decision in 1898.
From the historical context of the 14th Amendment, the language of said text, and U.S. Supreme Court precedent, it is abundantly evident that birthright citizenship is a constitutional right in the U.S.
In recognition of this, a new question is raised: if birthright citizenship is a right rather than a liberty, does the president have the authority to either alter or end a constitutional right by means of executive order? The simple answer to this is no.
Although the Constitution does not explicitly list executive orders as a presidential power, it is a power commonly inferred from Article II, which grants the president the authority to "take Care that the Laws be faithfully executed.”
Though the vagueness of Article II makes it challenging to know what exactly the founding fathers intended executive orders to be used for, we can be sure that it wasn’t for constitutional amendments because the Founding Fathers explicitly outlined 4 ways that the Constitution can be amended none of which require any input from the President.
Recently, Vice President Mike Pence reopened the discussion with a proposal that the president sign an executive order ending birthright citizenship only for the children of illegal immigrants.
Pence argues that although birthright citizenship was established as a right for the children of legal residents in U.S. v. Wong Kim Ark, the court has yet to rule on the citizenship status of the children of illegal immigrants.
By passing an executive order under these specific terms, Pence knows that the courts would be forced to decide whether or not the children of illegal immigrants born in America are citizens or not. If the court rules against the Trump Administration, nothing changes. But it they rule in their favor, the presidency may just find the immigration loophole it's been looking for.
Yet even if the Supreme Court came out tomorrow and said that the children of illegal immigrants aren’t citizens, the executive branch still does not have the authority to legislate and can only use executive orders within the legal framework provided by Congress.
In 1952, after President Harry Truman utilized an executive order to control U.S. steel, the Supreme Court quickly invalidated the order and found that Truman had violated the Due Process Clause and acted outside his authority by attempting to regulate an area where Congress had not provided him with legal parameters to do so. Given this precedent, it is likely that if the presidency attempted to end birthright citizenship for the children of illegal residents via executive order, the court would strike it down due to the lack of federal legislation on the matter.
President Trump’s proposal to end birthright citizenship may have raised headlines, but that’s all it will ever do. The president currently lacks both the authority and the legal framework to follow through with his suggestion. Consequently, we can be sure that birthright citizenship won’t be going anywhere anytime soon.
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