Trump immigration birthright plan would face certain legal challenge

Credit: Jamie Dupree

Credit: Jamie Dupree

President Donald Trump's declaration that his administration can end birthright citizenship in the United States by an executive order drew immediate scorn from legal and political circles on Tuesday, as critics of the President - along with some Republicans in Congress - said such an action could only be done by an amendment to the Constitution - not a simple order signed by a President, as Democrats said it was simply a political stunt before the mid-term elections.

"You cannot end birthright citizenship with an executive order," House Speaker Paul Ryan told WVLK, a radio station in Lexington, Kentucky, on Tuesday afternoon.

"Birthright citizenship is protected by the Constitution, so no @realDonaldTrump you can’t end it by executive order," tweeted Rep. Carlos Curbelo (R-FL).

"A president cannot amend Constitution or laws via executive order," said Rep. Justin Amash (R-MI).

"The President is wrong to end Birthright Citizenship," said Bob Hugin, a Republican running for U.S. Senate in New Jersey.

"This is some of the worst lawyering around," said Neal Katyal, a former acting Solicitor General in the Obama Administration, as he vowed Tuesday morning to immediately file a legal challenge against any such plan from President Trump.

"If he does it, we will challenge it. And win," Katyal said on Twitter.

"For reference, even Trump appointee to the 5th Circuit Jim Ho says this would be unconstitutional," said Michael Li, a lawyer with the Brennan Center in New York.

"Probably a pre-election gimmick, but fortunately we have courts," said Norm Eisen, a former ethics official in the Obama White House.

"What he is really doing is trying to stoke fear and anger by scapegoating immigrants a week before an election," said Rep. Jan Schakowsky (D-IL).

"Yet another Trump political stunt a week before the election," said Rep. Frank Pallone (D-NJ).

"This cynical ploy plays to the xenophobic element of his base," added Rep. Diana DeGette (D-CO).

"Trump wants a debate about ending birthright citizenship more than actually doing it," said former Obama aide Tommy Vietor. "Democrats should say, ok see you in court, now back to your plan to get rid of protections for preexisting conditions."

"“The president cannot erase the Constitution with an executive order, and the 14th Amendment’s citizenship guarantee is clear," said Omar Jadwat of the ACLU.

The President made the vow a week before the election in an interview with the news organization Axios, for a new special the group is running on HBO.

"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," the President said in the interview.

It was not immediately clear if the President would issue such an executive order, as he told his interviewers that the idea was being reviewed by White House lawyers.

But the text 14th Amendment is straightforward on what is often referred to as 'birthright citizenship.'

Credit: Jamie Dupree

icon to expand image

Credit: Jamie Dupree

But some immigration law experts acknowledge that while the intent of Congress was clear in the 1860's about how the Fourteenth Amendment was drawn up, the courts have never actually ruled directly on the issue of how it would apply to illegal immigrants.

"A narrowly tailored EO that rested on the view that the children of unauthorized immigrants are not subject to the jurisdiction of the US (in citizenship terms) and thus not citizens by virtue of Birthright is an argument that can be made," said Martha Jones, an expert on birthright citizenship.

In 1898, the U.S. Supreme Court upheld birthright citizenship for immigrants in what is known as the Wong Kim Ark case - but that dealt with immigrants legally in the United States.

"I'll leave it others to parse whether the President can bypass Congress on this," Jones added in a thread she posted this morning on Twitter. "My point is that his proposal raises a question that courts will need to resolve."

The talk of a birthright citizenship executive order came as the Pentagon moved additional troops to the southern border to deal with a caravan of illegal immigrants, which is 1,000 miles away in southern Mexico.