Mr. Trump told Axios during an interview. “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 for 85 years, with all of those benefits.” But, President Trump’s claim is simply false. There are more than 30 countries that provide people with birthright citizenship, according to Katherine Culliton-Gonzalez, in her paper, “Born in the Americas: Birthright Citizenship and Human Rights.” In the interview, President Donald Trump stated that he was preparing an executive order that would nullify the long-accepted constitutional guarantee of birthright citizenship. But can he use his executive order to remove something that is stated in the United States Constitution?
Birthright citizenship means that any children born in a country’s territory regardless of parentage will receive automatic citizenship. Additionally, the 14th Amendment of the U.S. Constitution states that “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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” If President Donald Trump realistically decides to pursue an end to birthright citizenship, there are two ways that he could potentially reach his end goal. But, due to today’s political climate, these two ways are far-fetched.
President Donald Trump has received both appraisal and backlash for suggesting an end to birthright citizenship. Republican House Speaker Paul Ryan of Wisconsin said “You obviously cannot do that. I’m a believer in following the plain text of the Constitution, and I think in this case, the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process.” Mr. Paul is right. If, President Donald Trump decides to pursue this reversal in the constitution, he cannot simply do so with an executive order.
Since the action of ending birthright citizenship would be an act of undoing a constitutional amendment, President Donald Trump could use his executive order to “offer his interpretation”, suggests Mark Krikorian, executive director of the Center for Immigration Studies. But, Trump cannot simply use his executive order to end birthright citizenship. The President could pursue Congress to plea for a new statute, but even so, this new law would need two-thirds of both the House and the Senate to approve a constitutional amendment. Even if President Donald Trump received approval from the House and the Senate, in order to pass this new amendment he would need states approval to ratify it as well.
In light of the 2018 elections, Democrats currently have the majority in the United States House of Representatives and Republicans have control of the Senate. Based on these numbers, one can assume that Donald Trump would not receive the approval of two-thirds of the House of Representatives. In addition, President Donald Trump would need the support of 75 percent of states. In the 2016 Presidential election, Trump won 30 out of 50 states, so one can suppose that states would not give the President support to this new amendment so easily.
The only other plausible way that President Donald Trump could pursue an end to birthright citizenship is through Article V Convention. Article V Convention is a way to propose new amendments to the United States Constitution which can only be done if two-thirds of the state legislatures pursue this measure. The Constitution states that “on the application of the legislatures of two-thirds of the states, 34 at present, Article V directs that Congress “shall call a Convention for proposing Amendments.”
As of 2018, the convention process has never been used. So, if the United States were to have one, no one would really know what this process would entail. An Article V Convention would bring about policy and constitutional questions that the legislative, executive, and judicial branches of the United States are not ready and or prepared to answer in today’s political climate. So in short, can President Donald Trump amend the 14th amendment and end birthright citizenship using an executive order?
Probably not.
Will he try?
We shall see.