Trump’s Attack On Birthright Citizenship Will Likely Hit A Constitutional Dead End

* President Donald Trump has insisted that a plan to do away
with birthright citizenship for children born to non-citizens and
unauthorized immigrants is “in the process.”
* It can “definitely” be done with legislation, he told Axios. But
he won’t use legislation. “It’ll happen … with an executive order,”
he said.
* But the president is vastly oversimplifying the matter. Despite
Trump’s claim, there’s more than a century of case law that
suggests that the Constitution protects against just the type of
legal decree he claims he is preparing.

President Donald Trump’s latest hard-line immigration proposal
is likely headed to a constitutional dead end.

The president insisted that a plan to do away with birthright
citizenship for children born to non-citizens and unauthorized
immigrants is “in the process.” It can “definitely” be done with
legislation, he told Axios. But he won’t use legislation. “It’ll
happen … with an executive order,” he said. “It was always told to
me that you needed a constitutional amendment. Guess what? You
don’t.”

But the president is wrong. Despite Trump’s claim, there’s more
than a century of case law that suggests that the Constitution
protects against just the type of legal decree he claims he is
preparing.

The president’s remarks did not include who provided the legal
advice he was relying on, and the White House did not respond to a
CNBC inquiry on the matter.

Trump is taking on the 14th Amendment, passed in 1868 to grant
citizenship to former slaves. It’s one of the most heavily
litigated provisions of the Constitution. Since at least 1898, the
Supreme Court has held that it grants citizenship to children of
noncitizens.

A long history of debate
In that 19th century case, United States v. Wong Kim Ark, the court
ruled that a child of Chinese parents who was born in San Francisco
was a U.S. citizen by virtue of his California birth.

“In the forefront both of the Fourteenth Amendment of the
Constitution and of the Civil Rights Act of 1866, the fundamental
principle of citizenship by birth within the dominion was
reaffirmed in the most explicit and comprehensive terms,” the court
wrote at the time.

The debate continued. A few years back, amid clamoring in
Congress over the issue, the nonpartisan Congressional Research
Service prepared a report on the matter.

The service found in its 2012 memo that even at the time it was
passed, the 14th Amendment was “intended to extend U.S. citizenship
to all persons born in the United States and subject to its
jurisdiction regardless of race, ethnicity or alienage of the
parents.” The protection was further enshrined in an Act of
Congress, the 1866 Civil Rights Act, which had been passed over the
veto of President Andrew Johnson.

Rep. Justin Amash, R-Mich., one of many lawmakers in Congress
who previously worked as an attorney, immediately blasted the
president’s move as unconstitutional.

“A president cannot amend Constitution or laws via executive
order,” Amash wrote in a post on Twitter. “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.”

Amash has taken positions at odds with the president before, and
was critical of Trump’s selection of Justice Brett Kavanaugh as his
second Supreme Court nominee.

James C. Ho, a conservative lawyer whom Trump appointed to the
United States Court of Appeals for the Fifth Circuit last year,
weighed in with a 2006 paper titled “Birthright Citizenship and the
Original Understanding of the 14th Amendment.”

In it, he wrote that any legislation that removed birthright
citizenship would likely be voided by the nation’s courts.

“All three branches of our government – Congress, the courts,
and the Executive Branch – agree that the Citizenship Clause
applies to the children of aliens and citizens alike,” he
wrote.

No legislation to remove birthright citizenship was passed.
Nonetheless, some conservative scholars have continued to press the
issue.

The politics of immigration
It is possible that the president’s decision to announce his
intention to do away with birthright citizenship is more a
political calculation than a legal one. Trump rose to power
promising to clamp down on immigration, and riled up his base with
chants promising to “build the wall.”

In recent weeks, the president has made a number of outlandish
promises to gin up support ahead of the Nov. 6 midterms. Earlier
this month, for instance, he said his administration would produce
a “resolution” to deliver a 10 percent tax cut to the middle class
ahead of the elections, despite Congress being out of session. That
resolution has yet to materialize.

In an instance with a more direct connection to the birthright
citizenship issue, the president on Monday deployed 5,200 active
duty troops to the southern border to ward off a migrant caravan
that remained hundreds of miles away in southern Mexico. The
president said, without evidence, that the caravan contained “Gang
Members and some very bad people.”

The administration has a track record of legally dubious
executive orders. In his first year in office, the president
attempted to limit travel to the U.S. from a number of
Muslim-majority countries. That order was blocked in court, and
ultimately revised twice before a version was upheld earlier this
year in a landmark Supreme Court ruling.

Pollsters have said that it looks likely, though not inevitable,
that the GOP could lose control of the House of Representatives,
which would hamstring the president’s legislative agenda. Democrats
have pledged strong oversight if they take the chamber.

Culled from .cnbc.com