Sorry, Donald Trump, that’s not how any of this works
“President” Donald Trump recently sat down for Axios on HBO and talked about birthright citizenship. In the piece, which will air Sunday, Trump made the shocking and incorrect statement that he can end or terminate birthright citizenship by executive order. The clip goes like this: “Trump declares he can end birthright citizenship with an executive order: ‘It was always told to me that you needed a constitutional amendment. Guess what? You don’t.’”
This is more dangerous behavior by the “President.” First, recall that Trump repeatedly attacked President Barack Obama for his use of executive orders to address issues that Congress had not, and Trump promised not to do the same. Like most of his proverbial bull, Trump was not honest about this area. He is on a historically fast pace of using executive actions, despite having a Congress with a majority of his same party.
Second, and more importantly, the Fourteenth Amendment to the United States Constitution guarantees citizenship to “all persons born or naturalized in the United States.” That language and protection cannot be changed without a Constitutional amendment. That language provides for anyone who is born in the United States or certain territories or outlying possessions of the United States.
This is known as the “right of the soil,” or Jus soli. It is not a concept unique to the United States but was part of the English common law. In the United States, the Fourteenth Amendment, one of the three Reconstruction Amendments, begins in Section 1 with the following language: “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 language, “subject to the jurisdiction thereof,” is designed to exclude children born to foreign diplomats and children born to enemy forces occupying the country’s territory. America must wake up, as we have a president who deems himself a dictator, able to do as he pleases with the pen pursuant to executive order. On the Axios clip, Trump states he has spoken with his legal counsel and it is coming. We are in dangerous times, and this dangerous power grab must be stymied, or our future will be in question.
Daniel is a lawyer writing and teaching about SCOTUS, and is the author of the book “The Chief Justices” about the SCOTUS as seen through the center seat.