US President Donald Trump is making another hardline immigration play in the final days before the midterm elections, declaring that he wants to order an end to the constitutional right to citizenship for babies born in the United States to non-citizens.
Trump made the comments to "Axios on HBO" having long-called for an end to birthright citizenship, as have many conservatives.
An executive order would spark an uphill legal battle for Trump about whether the president has the unilateral ability to declare that children born in the US to those living here illegally aren't citizens.
Most scholars think he can't.
Asked about the legality of such an executive order, Trump said, "they're saying I can do it just with an executive order."
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| Donald Trump |
He added that "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."
A 2010 study from the Centre for Immigration Studies, a group that supports immigration restrictions, showed that 30 countries offered birthright citizenship.
The Pew Research Center found in a survey published two years ago that births to "unauthorized immigrants" were declining and accounted for about 1 in 3 births to foreign-born mothers in the U.S. in 2014.
About 275,000 babies were born to such parents in 2014, or about 7 percent of the 4 million births in the U.S. that year, according to Pew estimates based on government data. That represented a decline from 330,000 in 2009, at the end of the recession.
An excerpt of Trump's interview was posted on Axios' website this morning.
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, but has some internal detractors.
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 today to meet with victims of the deadly synagogue shooting.
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 very 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."
Jadwat said the president has an obligation to uphold the Constitution. Trump can try to get Congress to pass a constitutional amendment, "but I don't think they are anywhere close to getting that."
"Obviously, even if he did, it would be subject to court challenge," he added.
Suzanna Sherry, a professor of law at Vanderbilt Law School specializing in constitutional questions, said those advising Trump that he can change the Constitution via executive order are simply 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.
The Citizenship Clause 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 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 US, the amendment nullified an 1857 Supreme Court decision (Dred Scott v. Sandford), which ruled that those descended from slaves could not be citizens.