President Donald Trump is intensifying his hardline immigration rhetoric heading into the midterm elections, declaring that he wants to order an end to the constitutional right to citizenship for babies of non-citizens and unauthorized immigrants born on US soil.
"How ridiculous, we're the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits," the president told “Axios on HBO.” "It's ridiculous. It's ridiculous. And it has to end."
Asked about the legality of such an executive order, Trump said, "they're saying I can do it just with an executive order." But an executive order to revoke the right would spark a court fight over whether the president has the unilateral ability to change an amendment to the Constitution.
The 14th Amendment of the US Constitution
Section 1, which contains the Citizenship clause, of the 14th Amendment guarantees the principle known as Jus Soli:
"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."
The sentence that follows specifies citizen rights: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."
The 14th Amendment was passed by Congress in 1866 during the period of Reconstruction after the Civil War. It was ratified in 1868 by three-fourths of the states. By extending citizenship to those born in the U.S., the amendment nullified an 1857 Supreme Court decision (Dred Scott v. Sandford), which ruled that those descended from slaves could not be citizens.
Trump said White House lawyers are reviewing his proposal. It's unclear how quickly he would act and the White House did not provide further details.
A person familiar with the internal White House debate said the topic of birthright citizenship had come up inside the West Wing at various times over at least the last year, but administration officials said there would likely be no decisions until after the midterms.
Legal experts questioned whether Trump has the authority to do this by executive order.
Omar Jadwat, director of the Immigrants' Rights Project at the American Civil Liberties Union in New York, said Tuesday said the Constitution is very clear.
"If you are born in the United States, you're a citizen," he said, adding that it was "outrageous that the president can think he can override constitutional guarantees by issuing an executive order.”
Jadwat said the president has an obligation to uphold the Constitution. Trump can try to get Congress to pass a constitutional amendment, "but I don't think they are anywhere close to getting that."
"Obviously, even if he did, it would be subject to court challenge," he added.
Others however suggest the president may have an opening.
Jon Feere, a senior adviser at Immigration and Customs Enforcement, is among those who has long argued that that the president could limit the citizenship clause through executive action.
"A president could direct his agencies to fall in line with his interpretation of the Supreme Court's rulings, which are arguably limited to children of permanently domiciled immigrants,” he wrote in 2015 in an op-ed in the Hill. “He could direct his agencies to issue Social Security numbers and passports only to newborns who have at least one parent who is a citizen or permanently domiciled immigrant,"
Immigration "a key issue" in midterm elections
Mr. Trump's comments come ahead of next week's mid-term election, in which immigration is a key issue for his GOP base. On Monday, the administration announced it was deploying over 5,200 troops to the southern border to block a caravan of Central American migrants making their way to the US-Mexico border and expected arrive to the US next month.
Republicans in Congress continue introducing bills to end birthright citizenship, including legislation this session from conservative GOP Rep. Steve King of Iowa who has aligned himself with some nationalist political leaders abroad. King's bill has almost 50 co-sponsors in the House. King's legislation though would likely face a cool reception in the Senate where there is no companion bill pending, and a handful of senators supported past efforts.
King said he had not discussed the issue with the president at any length in recent months, but that it had come up "in passing" several times in group discussions. He said he hadn't personally considered birthright citizenship to be part of the caravan issue and applauded the president for connecting the issues.
"Sending this message out, it's another component of saying to the caravan: Don't come in here. Some are pregnant, no doubt," he said.
He stressed there's never been a Supreme Court case on the issue, "so it's never been tested."
Trump voiced his theory that birthright citizenship could be stripped during his campaign, when he described it as a "magnet for illegal immigration." During a 2015 campaign stop in Florida, he said: "The birthright citizenship - the anchor baby - birthright citizenship, it's over, not going to happen."