President Trump says he will end birthright citizenship: 14th Amendment says otherwise


President Trump said in a new interview released Tuesday that he would like to sign an executive order intended to end the practice of birthright citizenship.

"It was always told to me that you needed a constitutional amendment. Guess what? You don't," Trump said during an interview with Axios.

Axios reports that the White House is preparing an order that would declare an end to the longstanding staple of America's immigration system.

That would set up a new battle for Trump at the Supreme Court over the 14th Amendment, which states that all persons "born or naturalized in the United States" are "citizens of the United States and of the State wherein they reside."

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 in the interview with Axios insisted it was possible to make the change through an executive order in additional to an act by Congress.

"You can definitely do it with an act of Congress. But now they're saying I can do it just with an executive order," the president added, before stating incorrectly: "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 ... with all of those benefits."

In fact, dozens of other countries, including Canada, Mexico and many others in the Western Hemisphere, grant automatic birthright citizenship, according to a study by the Center for Immigration Studies, an organization that supports restricting immigration and whose work Mr. Trump’s advisers often cite.

Trump refers to the right of citizenship granted to anyone born within the country's borders as "ridiculous" and expressed surprise that anyone outside of the Oval Office knew about the White House's plans.

"It's ridiculous. It's ridiculous. And it has to end," Trump told Axios, adding: "I didn't think anybody knew that but me. I thought I was the only one."

Many legal analysts doubt the president's theoretical executive order would fly with the Supreme Court.

"The 14th Amendment is explicit on this question: persons born in the U.S. are citizens of the U.S. and of the states in which they reside," said Sarah E. Turberville, director of The Constitution Project with the Project on Government Oversight.

In July, Michael Anton, who served as a spokesman for Trump’s National Security Council, argued in a Washington Post op-ed that "subject to the jurisdiction" of the U.S. would not apply to people who entered the country illegally. He also said that in United States v. Wong Kim Ark, the court only ruled that children of legal residents are citizens.

"An executive order could specify to federal agencies that the children of noncitizens are not citizens," Anton concluded, while conceding that "such an order would, of course, immediately be challenged in the courts."

In a 1982 decision, the Supreme Court rejected an argument similar to the one made by Anton and ruled that even if a person enters the country illegally, that person is within U.S. jurisdiction and "is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction – either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States – he is entitled to the equal protection of the laws that a State may choose to establish."

"No plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful," reads a footnote to the decision for Plyler v. Doe.

The president's reported plan to end birthright citizenship comes amid some of his administration's strongest rhetoric surrounding a caravan of thousands of Central American migrants bound for the U.S., where many members plan to apply for asylum.

Trump has been turning to his core issue of immigration as the midterm elections approach. The midterms will be a test for Trump, as Democrats are seen as the favorites to retake the House majority. Republicans are favored to keep their Senate majority.

Trump has made controversial and derogative remarks about the immigrant caravan traversing Mexico. He's referred to it as an "invasion" of migrants "and some very bad people."

"Please go back, you will not be admitted into the United States unless you go through the legal process. This is an invasion of our Country and our Military is waiting for you!" the president tweeted Monday.

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.”

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