In this Oct. 27, 2018, photo, President Donald Trump speaks during a
rally at Southern Illinois Airport in Murphysboro, Ill. Eager to focus
voters on immigration in the lead-up to the midterm elections, Trump on
Oct. 29 escalated his threats against a migrant caravan trudging slowly
toward the U.S. border as the Pentagon prepared to deploy thousands of
U.S. troops to support the border patrol.
President Donald Trump is making another hardline
immigration play in the final days before the midterm elections,
declaring that he wants to order an end to the constitutional right to
citizenship for babies born in the United States to non-citizens. Most
scholars think he can’t implement such a change unilaterally.
With seven days to go before high-stakes elections that he has sought
to focus on fearmongering over immigration, Trump made the comments to
“Axios on HBO.” Trump, seeking to energize his supporters and help
Republicans keep control of Congress, has stoked anxiety about a caravan
of Central American migrants making its way to the U.S.-Mexico border.
His administration announced Monday it was dispatching thousands of
active-duty troops to the border, and Trump said he’d set up tent cities
to house asylum seekers.
Trump has long called for an end to birthright citizenship, as have
many conservatives. An executive order would spark an uphill legal
battle for Trump about whether the president has the unilateral ability
to declare that children born in the U.S. to those living here illegally
aren’t citizens. Most scholars think he can’t.
Asked about the legality of such an executive order, Trump said,
“they’re saying I can do it just with an executive order.” He added that
“we’re the only country in the world where a person comes in and has a
baby, and the baby is essentially a citizen of the United States.” A
2010 study from the Center for Immigration Studies, a group that
supports immigration restrictions, showed that 30 countries offered
birthright citizenship.
The Pew Research Center found in a survey published two years ago
that births to “unauthorized immigrants” were declining and accounted
for about 1 in 3 births to foreign-born mothers in the U.S. in 2014.
About 275,000 babies were born to such parents in 2014, or about 7
percent of the 4 million births in the U.S. that year, according to Pew
estimates based on government data. That represented a decline from
330,000 in 2009, at the end of the recession.
An excerpt of Trump’s interview was posted on Axios’ website on Tuesday.
The president 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 has some internal detractors.
White House lawyers have debated the topic, and expect to work with the
Justice Department’s Office of Legal Counsel to develop a legal
justification for the action. It is one of many immigration changes
being discussed including asylum law changes, and barring the migrant
caravan from entering the country.
But administration officials said there would likely be no decisions
until after the midterms, due in part to the president’s trip to
Pittsburgh Tuesday to meet with victims of the deadly synagogue
shooting.
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 that 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.
Suzanna Sherry, a professor of law at Vanderbilt Law School
specializing in constitutional questions, said those advising Trump that
he can change the Constitution via executive order are simply mistaken.
“He can’t do it by himself and, in fact, he can’t do it even if
Congress passed a statue.”
“I think it would take a Constitutional amendment,” she said. “I don’t see it as having any plausible legal basis,” she said.
But others 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 (the court has
never squarely ruled on children born to tourists or illegal aliens). 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,” he wrote in 2015 in an op-ed in
the Hill.
In the final days before the Nov. 6 midterms, Trump has emphasized
immigration, as he seeks to counter Democratic enthusiasm. Trump
believes that his campaign pledges, including his much-vaunted and
still-unfulfilled promise to quickly build a U.S.-Mexico border wall,
are still rallying cries for his base and that this latest focus will
further erode the enthusiasm gap.
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.”
The Citizenship Clause of the 14th Amendment states: “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 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.
In addition to the debate over Trump’s authority to declare that
children born in the U.S. aren’t citizens, a separate question is
whether Congress could pass a law to that effect, or whether only a
constitutional amendment could accomplish Trump’s apparent aim of
denying citizenship to U.S.-born children of those here illegally.
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.
Sen. Lindsey Graham of South Carolina, now a close ally of the president, also tweeted his support for the change.
“This policy is a magnet for illegal immigration, out of the
mainstream of the developed world, and needs to come to an end,” he
said.
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