President Trump continued his push to end birthright citizenship Wednesday, with days to go before the midterm elections, claiming the 14th Amendment’s guarantee of citizenship does not apply to the children of undocumented immigrants. Mr. Trump first mentioned ending birthright citizenship via executive order in an interview with Axios that aired Tuesday morning.
“So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other,” the president tweeted Wednesday morning. “It is not covered by the 14th Amendment because of the words ‘subject to the jurisdiction thereof.’ Many legal scholars agree…..”
The citizenship clause of the 14th Amendment, crafted in order to grant citizenship to former slaves, states that, “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.” In the past, when Republicans have suggested eliminating birthright citizenship, they have done so by floating a constitutional amendment, not an executive action.
Meanwhile, even some in his own party claim the president cannot reverse birthright citizenship via executive order. Retiring Speaker of the House Paul Ryan on Tuesday declared flatly that Mr. Trump “cannot end birthright citizenship with an executive order.”
Rep. Justin Amash, R-Michigan, was one of the first Republicans to object to the president’s announcement to end birthright citizenship. He tweeted Tuesday, “A president cannot amend Constitution or laws via executive order. Concept of natural-born citizen in #14thAmendment derives from natural-born subject in Britain. Phrase ‘and subject to the jurisdiction thereof’ excludes mainly foreign diplomats, who are not subject to U.S. laws.”
Even Vice President Mike Pence, on the campaign trail in 2016, declared birthright citizenship was “settled law.”
The president’s top advisers haven’t publicly gone as far as the president’s claim that birthright citizenship is not covered by the 14th Amendment. Counselor to the president Kellyanne Conway told reporters Tuesday night the Supreme Court had simply never provided a “solid” answer the the question.
“There are constitutional scholars who say the 14th Amendment has been misinterpreted and actually the Supreme Court has never gave a solid opinion on this,” Conway said.
The Supreme Court has touched on the citizenship clause of the 14th Amendment numerous times. In 1898, in U.S. v. Wong Kim Ark, the Supreme Court ruled that “Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.”
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