Updated at 2:20 p.m. ET
Just a week before the midterm elections President Trump is talking about changing birthright citizenship in the U.S.. The 14th Amendment to the U.S. Constitution states that all people born in the United States are U.S. citizens. Less than a day after the president announced his intention to send U.S. troops to the border he told reporters he believed he had the right to issue an executive order negating the constitutional guarantee of birthright citizenship. Joining me is legal analyst Dan Eaton and Dan welcome to the program. Thank you very much for being. Good to be with you. Is there any reason to think that the president could override this part of this 14th Amendment with an executive order. Well President Trump seems to think so because I understand he does believe he would be overriding the constitutional amendment at all. All he thinks he would be doing is in effect interpreting it through an executive order. So he's not claiming that he has the right unilaterally to override a constitutional amendment. The real question is whether the phrase in the 14th amendment addressing anyone under the jurisdiction of the laws of the United States means those who are undocumented immigrants and the children of those who are undocumented immigrants aren't undocumented immigrants under the jurisdiction of the laws of the United States when they enter this country. Well certainly most constitutional scholars think so although there's a minority thinks that they are not. There are some constitutional authority including one at Yale and John Eastman of Chapman who say that under their jurisdiction means that they have no allegiance to any other foreign power and they have complete political allegiance to the United States. But most including interestingly a judge who was appointed to the Fifth Circuit by President Trump earlier this earlier this term and succeeded Ted Cruz as solicitor general of Texas has said that the plain meaning of the language of the 14th Amendment says a foreign national living in the United States is subject to the jurisdiction thereof because he is legally required to obey U.S. law. By contrast a foreign diplomat who travels on behalf of a foreign sovereign enjoys diplomatic immunity from and thus is not subject to the jurisdiction of U.S. law. I was quoting from a piece by James Holmes. Now Judge Jane told The Fifth Circuit in The Wall Street Journal in 2011. Now the 14th Amendment for many reasons is a really pivotal amendment. Tell us what it guarantees. Well it prohibits states from denying due process and equal protection of the laws to those within their territory. But of course the clause that we are talking about here is is a very different one and it deals with the issue of whether those who are within the jurisdiction of United States are are citizens. The the clause that gets the most attention is the clause prohibiting states from denying you protection to due process of the law to those within their borders. Other politicians have at one point floated the idea of getting rid of birthright citizenship. Is is there any way that that could be done without a repeal process. Well again it gets back to the point of whether the president could do it by executive order. There have been several attempts to do that including interestingly by former Senate majority leader a Democrat Harry Reid of Nevada who tried to do it in connection with clarifying immigration laws he called it the biggest mistake of his political career. But again if you were talking about repealing an amendment to the United States Constitution that could really only be done through the constitutional process. The real question is whether this particular constitution means or guarantees birthright citizenship as the Supreme Court in 1982 in a case called Plyler versus suggested it does in a famous footnote 10 by Justice William Brennan. How difficult let's let's say with a constitutional amendment for one moment more. How difficult is it to repeal a constitutional amendment when we're talking about repealing a constitutional amendment of course you're thinking of prohibition and the 85 men but the process of repealing a constitutional would deal with amending the Constitution itself and that set forth in Article 5 which requires a vote of two thirds in Congress. That's later ratified by three quarters of the state legislatures to give you some perspective. The last amendment the constitution is the twenty seventh amendment which deals with very cost varying the compensation of members of Congress during their term of office and says it can't be done until after a subsequent election an election intervenes. Interestingly that was first post in 1789. And it wasn't ratified until 1992 203 years later. So these things take a lot of time and it's a very difficult process which is why the president suggested that it can be done by executive order and his earlier suggestion three years ago on the campaign trail and interview with Bill O'Reilly that could be done by acts of Congress is really viewed as the most expeditious way of going about this. But it certainly will be challenged in court and a vast majority of constitutional scholars think that it is doomed to failure. Walk me through this just a little bit longer if if people who are not citizens of the United States are not under the jurisdiction of the laws of the United States then why would anybody obey the law of the United States if they were not a citizen. Well it's the distinction that some of these the minority callers draw between being required to obey the laws of the United States and being having a allegiance to the laws of a foreign jurisdiction. That's really the distinction they are drawing. Those who believe that under the jurisdiction means anyone who was born here argue that no what it means is that if you are required to obey the laws you're under the jurisdiction that's what the plain meaning of that phrase means. But there are some people including Kris Kobach who's now running for governor of Kansas who believe that under the jurisdiction means that you have to complete and full allegiance to the United States. And that is not true of those who are here illegally. That's their argument. But it's it's going to be a tough sell. Now President Trump also said the U.S. is the only country that allows birthright citizenship. I believe that's false. Canada has the same kind of liberal birthright citizenship as the US. Several countries have versions of it. But hasn't it always been argued that birthright citizenship for the U.S. as a nation of immigrants is something special and for Coulier to our national psyche. Well I suppose I mean of course United States prides itself with actual liberty as being a nation of immigrants and that's certainly true in the broader sense that is ultimately not really a constitutional argument although it does certainly play to a sense of national identity. But understand that President Trumps conception of that is is distinct and his argument is that the a constitutional amendment that we've been talking about the 14th Amendment allows him to do certain things that a lot of scholars don't think he can. But there are some who support him and it'll be interesting to see what the courts ultimately decide if he goes through with executive order. I've been speaking with Attorney Dan Eaton partner with the firm Selsor Kaplan McMahon Invitel and Dan thank you. Thank you Maureen.
President Trump is planning to use an executive order to strip birthright citizenship from America's laws, rather than trying to change the Constitution through an act of Congress. The potential move, which would very likely trigger numerous legal challenges, would seek to end the conferring of citizenship to children of noncitizens who are born in the U.S. — which is currently guaranteed by the 14th Amendment.
"It was always told to me that you needed a constitutional amendment. Guess what? You don't," Trump said. He discussed the plan in an interview with Axios on HBO that is slated to air Sunday.
A constitutional amendment would require an act of Congress — and after Trump's remarks made headlines, House Speaker Paul Ryan said the president's plan to end birthright citizenship with an executive order would be unconstitutional.
"Well, you obviously cannot do that," Ryan told radio station WVLK in Kentucky. "You cannot end birthright citizenship with an executive order."
Ryan said, "we didn't like it when Obama tried changing immigration laws via executive action, and obviously as conservatives we believe in the Constitution .... I'm a believer in following the plain text of the Constitution and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process."
Birthright citizenship is granted in the 14th Amendment's first sentence: "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 concept is based on jus soli — "right of the soil" — meaning that children born in the U.S. have a claim to citizenship, even if their parents lack legal documentation to be in the country.
Trump has mentioned the idea of voiding the amendment before, most notably in August 2015, when the birthright issue became part of his hard-line policies on immigration as a presidential candidate. Now Trump is discussing the birthright citizenship law roughly one week before U.S. voters will head to the polls for the 2018 midterm election.
In addition to guaranteeing citizenship by birth in the U.S., the 14th Amendment bars states from denying essential rights without due process. As the Library of Congress notes, the amendment "greatly expanded the protection of civil rights to all Americans and is cited in more litigation than any other amendment."
The amendment's final section notes that it is Congress — not the president — who has the power "to enforce, by appropriate legislation, the provisions of this article."
The 14th Amendment became law in 1868, as a rebuke to the Supreme Court's Dred Scott decision, which had held that freed slaves were not U.S. citizens. Since then, its meaning and reach have been debated in courtrooms and in American society, with many questions centering on the phrase "the jurisdiction thereof."
"That means that they are subject to the laws of the United States, that they can, for example, be prosecuted for violating American law," constitutional law professor Suzanna Sherry told NPR in 2015. The law excludes, for instance, the children of foreign diplomats.
In the 1860s, it was intended both to grant citizenship to freed slaves and to give peace of mind to immigrants.
As Sherry, who teaches at Vanderbilt University, told NPR in 2015, "the United States had experienced quite a bit of immigration, and immigration was viewed as a very good thing. And so this was essentially putting out a welcome mat to immigrants by ensuring that their children born here would be citizens."
To change the law, Sherry said, you would need to either amend the 14th Amendment through Congress or ask the Supreme Court to overturn its earlier interpretation of the law and limit its benefit to people who are in the U.S. legally.
While many legal scholars agree, the president says he has the power to act on his own.
"You can definitely do it with an act of Congress," Trump said in the Axios on HBO interview. "But now they're saying I can do it just with an executive order."
He added, "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. It's ridiculous. It's ridiculous, and it has to end."
Birthright citizenship is the law of at least 30 countries, including many U.S. neighbors in North and South America. All of the countries in Europe grant automatically citizenship by jus sanguinis — by "right of blood." Some, like France, also offer a path to children of immigrants to acquire citizenship at age 18.
The president said he has spoken about the birthright issue with the White House counsel. As for when he might act, Trump said, "It's in the process. It'll happen — with an executive order."
Responding to the president's words, Mark Krikorian, the executive director of the Center for Immigration Studies, predicted, "This will set up the court fight."
CIS identifies itself as a nonpartisan think tank, but it has consistently called for tougher U.S. immigration policies, and the Southern Poverty Law Center has designated it a hate group.
If Trump moves ahead with his plan, Krikorian said via Twitter, "the order will be enjoined, case will eventually reach SCOTUS, which then will finally have to rule on the meaning of 'subject to the jurisdiction.' "
Critics of birthright citizenship have said it encourages pregnant women who want to immigrate to travel to the U.S. to have their babies, hoping to gain citizenship for their children and, they say, potentially easing their own path to becoming U.S. citizens. But immigration advocates say those concerns are overblown — part of a campaign to stir up voters in an election season.
While it's difficult to track the exact number of children whose parents are in the U.S. illegally, the Pew Research Center has reported that in 2014, 3.2 million children — nearly 6 percent of all K-12 students in the U.S. — had at least one unauthorized immigrant parent and were citizens because they were born in the U.S.
If Trump is able to somehow roll back part of the 14th Amendment, the policy shift would not reduce the number of undocumented immigrants in the U.S., according to the Migration Policy Institute. In fact, it could do the opposite: When the group did a study projecting the effects of a potential repeal of birthright citizenship in 2015, it found that such a change would add millions of people to America's undocumented population within a few decades, essentially creating a new underclass.
And besides, MPI's Michael Fix wrote when that study was published, "Birthright citizenship is not what drives illegal immigration. Surveys have found that people come for jobs and to better their lives."
Krikorian of the CIS said an executive order on the issue is "long overdue," but Trump's idea to revoke birthright citizenship is "ill-timed" and misguided, says Kristen Clarke, the executive director of the Lawyers' Committee for Civil Rights Under Law.
"Aside from being unconstitutional, such an executive order would exacerbate racial tensions, exploit fears and drive further polarization across the country at a moment that calls for the promotion of unity and inclusion," Clarke said.
Jess Morales Rocketto, whose Families Belong Together group has fought the Trump administration's family separation policy along the U.S.-Mexico border, was more blunt.
"This is ethnic cleansing," Rocketto said. "This is an attempt to white-out America's history and heritage as a nation of immigrants. And it's unconstitutional."
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