Posted: 12:06 pm Wednesday, October 31st, 2018
By Jamie Dupree
President Donald Trump on Wednesday again called for an end to birthright citizenship for those born in the U.S. to the parents of illegal immigrants, declaring on Twitter that the issue would ultimately be decided by the courts, but it wasn’t clear if the President would actually issue any order on the subject in the days leading up to the 2018 mid-term elections, as Mr. Trump sparred with Republicans who weren’t on board with his idea.
“I will keep our Country safe,” the President said in a flurry of morning tweets. “This case will be settled by the United States Supreme Court!”
But for there to be a legal fight over how to treat children born in the U.S. to non-citizen parents who are in the country illegally, the President would have to issue an executive order making an explicit change in how the feds handle birthright citizenship, an issue that is governed by the 14th amendment to the Constitution.
Before leaving for a campaign stop in Florida, the President shrugged off that legal debate, saying if President Barack Obama could set up the DACA program for the children of illegal immigrants through an executive order, then the Trump Administration should be able to use executive actions to deal with the birthright citizenship question as well.
"You don't need a constitutional amendment for birthright citizenship," says President Trump: "If president Obama can get DACA approved… We can do this by executive order." https://t.co/w5dEhwdW25 pic.twitter.com/yyXu3KH6I8
— The Lead CNN (@TheLeadCNN) October 31, 2018
“I may very well do it by executive order,” the President told reporters outside the White House.
It was not immediately clear if the President would issue such an order before the elections; for example, last week Mr. Trump repeatedly said he would release a new tax cut plan for the middle class before the elections, but no details have been forthcoming.
“The President is looking at all options,” White House Press Secretary Sarah Huckabee Sanders told reporters.
So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other. It is not covered by the 14th Amendment because of the words “subject to the jurisdiction thereof.” Many legal scholars agree…..
— Donald J. Trump (@realDonaldTrump) October 31, 2018
While the President said Wednesday that ‘many legal scholars agree’ with his argument that the children of illegal immigrants who are born in the U.S. don’t deserve citizenship, there are a large number of legal scholars and politicians who do not agree with Mr. Trump on that matter.
“If Trump could end birthright citizenship he he could issue an executive order saying the First Amendment doesn’t restrict his conduct as president,” said constitutional expert Lawrence Tribe, as others argue an actual amendment to the Constitution would be needed to make such a change.
“If you don’t like it, amend it,” wrote Steve Vladeck, a law professor at the University of Texas.
A day after House Speaker Paul Ryan had said the President did not have the authority to change the 14th Amendment via executive order, the President rebuked the outgoing Speaker.
Paul Ryan should be focusing on holding the Majority rather than giving his opinions on Birthright Citizenship, something he knows nothing about! Our new Republican Majority will work on this, Closing the Immigration Loopholes and Securing our Border!
— Donald J. Trump (@realDonaldTrump) October 31, 2018
But it was clear within GOP ranks in the Congress, that others strongly agreed with Ryan, and not the President.
“I strongly disagree with the proposed executive order,” said Rep. Mario Diaz-Balart (R-FL), as the President faced new resistance from within his own party over the meaning of the 14th Amendment.
“All persons in the U.S., thus, except for accredited foreign diplomats in specified instances, are subject to U.S. laws, and, if born in the U.S., are U.S. citizens,” Diaz-Balart said.
In conservative circles, there were some who warned that it was wrong when President Obama used executive actions on immigration – and that it’s wrong as well for President Trump to do it, especially since this involves tinkering with the interpretation of the Constitution, not just a statute.
Staggering to see certain segments of the right that still complain about Marbury v. Madison as judicial overreach suddenly cool with a President reinterpreting part of the 14th amendment by executive order.
— Erick Erickson (@EWErickson) October 31, 2018
Even the Wall Street Journal editorial page – no bastion of liberalism – said the President was wrong.
“President Trump really, really wants to make the midterm election about immigration, and for a while it looked like he had an edge due to Democratic excess. But with this week’s pre-election vow to end birthright citizenship in America by executive order, Mr. Trump has driven into his own constitutional ditch,” the paper’s editorial board wrote.
Meanwhile, Democrats denounced the President’s declarations, saying it was nothing more than political red meat for his Republican base of supporters.
“The Master of Distraction continues to foment bigotry to distract from his failed agenda, hoping his base rhetoric will motivate his base,” said Rep. Lloyd Doggett (D-TX).