Empty Threats: Assessing the Legality of Donald Trump’s Birthright Citizenship Executive Order

By Omar Khoury
Omar Khoury is the Editor-in-Chief of the Penn Undergraduate Law Journal and a senior in the College of Arts and Sciences studying Modern Middle Eastern Studies and English.

In a highly controversial and televised interview, President Donald Trump told the news and information website Axios that he intends to revoke the birthright citizenship clause of the 14th Amendment to the US Constitution by executive order. Such a move warrants comprehensive scrutiny on the legality of this intended executive order and on the veracity of the legal arguments invoked to justify it.
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Manifesting itself as the Citizenship Clause, the 14th Amendment states that “[a]ll 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.” Adopted in 1868, the Amendment and the Clause signified a reversal of the notorious Dred Scott v. Sandford decision, in which the United States Supreme Court declared African Americans were not and could not become citizens of the United States. [1]

Exactly 150 years later, President Trump conveyed his intentions to invalidate this particular clause of the 14th Amendment. [2] In the interview, Trump argued that rescinding this clause could be done by executive order and alleged that the United States of America is the “only country in the world” with birthright citizenship. To address the second point, more than 30 countries, most of which are in the Western Hemisphere and include Mexico and Canada, practice conferring citizenship upon birth in what is known as jus soli. [3]

With regards to Mr. Trump’s primary modus arguendi, he emphatically endorsed his constitutional right to authorize executive orders and directives to override the 14th Amendment. Unfortunately for the President, only a few constitutional scholars, such as John Eastman, believe he is constitutionally endowed to do so. With reference to the phrase “subject to the jurisdiction thereof,” Mr. Eastman maintains that the Amendment applies to people with full and complete political allegiance to the US (namely green card holders and citizens).

However, in 1898, the Supreme Court in United States v. Wong Kim Ark, held explicitly that the language “subject to the jurisdiction thereof” was meant to exclude (besides Native Americans born on tribal land) two groups and two groups only: children of foreign diplomats and children of enemy occupiers. [4] Perhaps the latter category of exclusions is the impetus for Mr. Trump’s recent authorization for increased military presence at the Southern border to stop a migrant caravan—an evident characterization of the migrants as “enemy occupiers.” [5] After all, Mr. Trump did characterize the recent migrant caravan as an “assault on our country” at an October 22nd rally in Texas for Ted Cruz.  

Regardless of the reason behind the military deployment, the question still remains as to the legality of Mr. Trump’s claim that he can override the 14th Amendment by way of executive order. Executive orders are constitutionally enfranchised directives a sitting president may issue in order to manage or enforce the operations of the federal government. [6] Similar to legislative statutes and governmental regulations, executive orders are not exempt from judicial review and can be overturned if the order is determined to lack constitutional support. [7]

With Mr. Trump’s latest flex of political prowess, he may have exposed his own misunderstanding and miscomprehension of the legal processes he is constitutionally mandated to support and defend. Any executive order that challenges the authority of the 14th amendment would almost certainly be met with immediate legal challenges in a court of law.

Regardless of the president’s intentions, he cannot repeal any part the Constitution. Such an act could only come through a constitutional amendment that would require a two-thirds vote in both the House and Senate and ratification by three-quarters of the states. With Congress now divided between a Democrat-controlled House and a Republican-majority Senate, the effort to erase the clause is unlikely to clear these hurdles. [8]

The only foreseeable way that Mr. Trump’s executive order will have its intended impact is if the order is legally challenged and then successfully appealed at the Supreme Court of the United States, the nation’s highest court. Given the recent, albeit controversial, appointment of Brett Kavanaugh as an Associate Justice, the ideological make-up of the Court is decidedly conservative. [9] Thus, if the Supreme Court Justices vote along ideological lines, Mr. Trump’s self-boasted conservatism would certainly make it seem more likely than not that the conservative Justices would support the legality of the executive order in favor of redefining the birthright citizenship clause.

Unfortunately, given the divisive controversy that would arise from such a decision, the Supreme Court Justices, taking into consideration the public perception of the Court’s legitimacy, would undoubtedly involve other factors besides ideological and party loyalty in adjudicating their respective decisions.

Thus, Mr. Trump’s threat of governmental involvement by way of executive order is poised to face a daunting uphill battle. Of course, this conclusion rests on the underlying assumptions that the legislative and judicial systems of the United States remain separate—a political concept which has recently been called into question following the national exacerbation of party politics. But, giving the benefit of the doubt to the natural, uncorrupted course of American politics and governance, Mr. Trump’s threat is as empty as his capacity to understand the Constitution, which he has nonetheless sworn to support and defend. 
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References:

[1] Dred Scott v. Sandford, 60 U.S. 393 (1856)

[2] Jonathan Swan, and Stef Kight. 2018. "Exclusive: Trump Targeting Birthright Citizenship With Executive Order". Axios. Accessed November 10 2018. https://www.axios.com/trump-birthright-citizenship-executive-order-0cf4285a-16c6-48f2-a933-bd71fd72ea82.html.

[3] Vincent, Andrew. Nationalism and Particularity. Cambridge University Press.

[4] "Can Trump End Birthright Citizenship? We Asked 10 Legal Experts.". 2018. Vox. Accessed November 10 2018. https://www.vox.com/2018/10/30/18042638/trump-birthright-citizenship-14th-amendment-legal-experts.

[5] Copp, Tara, 2018. "2,100 Mostly Unarmed Guard Troops On Border As Trump Vows To Send More To Stop Migrant Caravan". Military Times. Accessed November 10 2018. https://www.militarytimes.com/news/your-military/2018/10/23/2000-unarmed-guard-troops-on-border-as-trump-vows-to-send-more-to-stop-migrant-caravan/.


[6] John Contrubis 1999. Executive Orders and Proclamations, CRS Report for Congress #95-722A. https://en.wikisource.org/wiki/Executive_Orders_and_Proclamations#1

[7] Rebecca M. Patton, MSN, RN, CNOR, FAAN; Margarete L. Zalon, PhD, RN, ACNS-BC, FAAN; Ruth Ludwick, PhD, RN-BC, CNS, FAAN, 2014. Nurses Making Policy: From Bedside to Boardroom. Springer Publishing Company. p. 94. ISBN 978-0-8261-9892-1.

[8] Omar Jadwat, 2018. "No, Mr. President. You Can’t Change The Constitution By Executive Order". 2018. American Civil Liberties Union. Accessed November 11 2018. https://www.aclu.org/blog/immigrants-rights/road-citizenship/no-mr-president-you-cant-change-constitution-executive-order.

[9] Alvin Chang, 2018. "Brett Kavanaugh And The Supreme Court’s Drastic Shift To The Right, Cartoonsplained". Vox. Accessed November 12 2018. https://www.vox.com/policy-and-politics/2018/7/9/17537808/supreme-court-brett-kavanaugh-right-cartoon.

Photo Credit: Unsplash: Luke Stackpoole https://unsplash.com/photos/-gy4s9SQ1RI

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