On January 20, 2017, Donald Trump swore an oath to preserve, protect, and defend the Constitution of the United States. Yet, this week, as part of his ongoing campaign to divide and conquer the country he is supposed to serve, the president is claiming that he has the power to override the Constitution with an executive order.
In a blatant attempt to ratchet up anti-immigrant sentiment prior to the November 6 election, Trump is saying that he could unilaterally end birthright citizenship—the historic commitment that a child born within the United States, and subject to its jurisdiction, is automatically and unquestionably a US citizen.
Ranting in his newly proclaimed “nationalist” mode, the president announced 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…with all of those benefits. It’s ridiculous. It’s ridiculous. And it has to end.”
The president is wrong. Many countries provide for birthright citizenship, and the United States, a nation of immigrants, has a very long history of embracing this humane and practical protection.
The president is even more wrong when he asserts, as he has in an interview with Axios that, “It was always told to me that you needed a constitutional amendment. Guess what? You don’t.”
Challenged on his claim, Trump said, “You can definitely do it with an act of Congress. But now they’re saying I can do it just with an executive order.
What the president proposes is a stunning abuse of power.
The Citizenship Clause outlined in the first sentence of Section 1 of the 14th Amendment to the Constitution of the United States declares 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.”
There is no “lack of clarity.” There is nothing “in dispute.” There is nothing “open to question.” The Constitution says, “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.”
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The president has no authority to overturn a section of the Constitution with an executive order. The president and his allies in Congress, such as noxious white nationalist Steve King (R-Iowa), cannot use a simple act of Congress to cancel the 14th Amendment—or any other amendment to the Constitution.
As Harvard Law professor Laurence Tribe, one of the nation’s foremost experts on constitutional law, explains it: “If the 14th Amendment’s guarantee of birthright citizenship could be wiped out with the stroke of Trump’s pen, the whole U.S. Constitution could be erased that way. There’s no limit to that dictatorial claim over all our rights.”
The president should be given no ground on this issue. After so many years of peddling so many racist and xenophobic falsehoods—about former president Obama’s birthplace, about walls and refugees and caravans—Trump cannot be permitted to use a lie about the Constitution to advance his nationalist crusade.
If he abuses his position in an effort to undermine the protections afforded by an amendment to the Constitution that bars any abridging of the privileges or immunities of citizens of the United States, the president must be immediately checked and balanced by responsible members of Congress and by the courts. The response from New York Attorney General Barbara Underwood office was appropriately blunt: “The Constitution is clear. If President Trump’s pre-Election Day ploy to unconstitutionally end birthright citizenship moves forward, we will see him in court.”
If Trump persists in this lawless endeavor, he should be introduced to an essential requirement of the Constitution. Article 2, Section 4, of the founding document states that “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
A serious effort to overturn or cancel a section of the Constitution by executive fiat represents a classic impeachable offense. If Trump attempts it, he should be dealt with according to the dictates of Article 2, Section 4.
