WASHINGTON, D.C. — President Donald Trump says he wants to end birthright citizenship for noncitizens and illegal immigrants by executive order. Trump’s comments come as a caravan of central American migrants head toward the U.S. border through Mexico.
Trump made the comments to “Axios on HBO.” The president has long called for an end to birthright citizenship, as have many conservatives. An executive order to revoke the policy would likely spark a court fight over whether the president has the authority to make such a change.
Asked about the legality of such an executive order, Trump said, “They’re saying I can do it just with an executive order.” He added, “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,” though a 2010 study from the Center for Immigration Studies showed that 30 countries offered birthright citizenship.
An excerpt of the interview was posted on Axios’ website on Tuesday.
The president said White House lawyers are reviewing his proposal. It’s unclear how quickly he would act, and the White House did not provide further details.
A person familiar with the internal White House debate said the topic of birthright citizenship had come up inside the West Wing at various times over at least the last year. White House lawyers have debated the topic and expect to work with the Justice Department’s Office of Legal Counsel to develop a legal justification for the action. It is one of many immigration changes being discussed including asylum law changes and barring the migrant caravan from entering the country.
But administration officials said there would likely be no decisions until after the midterms, due in part to the president’s trip to Pittsburgh.
Some legal experts questioned whether Trump has the authority to do this by executive order.
Omar Jadwat, director of the Immigrants’ Rights Project at the American Civil Liberties Union in New York, said Tuesday that the Constitution is clear.
“If you are born in the United States, you’re a citizen,” he said, adding that it was “outrageous that the president can think he can override constitutional guarantees by issuing an executive order.”
Suzanna Sherry, a professor of law at Vanderbilt Law School specializing in constitutional questions, said those advising Trump that he can make the change via executive order are mistaken. “He can’t do it by himself and, in fact, he can’t do it even if Congress passed a statue.”
“I think it would take a Constitutional amendment,” she said. “I don’t see it as having any plausible legal basis,” she said.
But other legal experts suggest the president may have the authority.
Jon Feere, a senior adviser at Immigration and Customs Enforcement, is among those who have argued that that the president could limit the citizenship clause through executive action.
“A president could direct his agencies to fall in line with his interpretation of the Supreme Court’s rulings, which are arguably limited to children of permanently domiciled immigrants (the court has never ruled on children born to tourists or illegal aliens). He could direct his agencies to issue Social Security numbers and passports only to newborns who have at least one parent who is a citizen or permanently domiciled immigrant,” he wrote in 2015 in an op-ed in The Hill.
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.”
The first line of the 14th Amendment states: “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 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.
Republicans in Congress have introduced bills to end birthright citizenship, including legislation this session from conservative GOP Rep. Steve King of Iowa. King’s bill has almost 50 co-sponsors in the House. King said he had not discussed the issue with the president at any length in recent months, but that it had come up “in passing” several times in group discussions.
Michael Anton, an adviser to Trump, told Fox News in July that “there’s a clause in the middle of the amendment that people ignore or they misinterpret – subject to the jurisdiction thereof.”
“What they are saying is, if you are born on U.S. soil subject to the jurisdiction of the United States – meaning you’re the child of citizens or the child of legal immigrants, then you are entitled to citizenship,” said Anton. “If you are here illegally, if you owe allegiance to a foreign nation, if you’re the citizen of a foreign country, that clause does not apply to you.”
The Axios HBO series debuts on Sunday.
NSJ Staff contributed to this report.