President Trump said he plans to sign an executive order removing citizenship rights for the children of noncitizens born on American soil — a right that is guaranteed by the United States Constitution — in a clip from an interview with Axios News on HBO released Tuesday.
"It was always told to me that you needed a constitutional amendment. Guess what? You don't," he 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."
This is, in a word, inaccurate: Even if Trump does sign an executive order to this effect, it would almost definitely wind up in court, and the Supreme Court has made a clear ruling on the right to citizenship for those born in the United States.
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. 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."
The Supreme Court specifically ruled on the issue in 1898, deciding that the US could not deny citizenship to anyone born in the country. The court can revisit opinions, but it doesn’t appear likely justices would choose to overturn this precedent.
Speaker Paul Ryan, a Republican, said Tuesday, "you cannot end birthright citizenship with an executive order. We didn't like it when Obama tried changing immigration laws via executive action, and obviously as conservatives we believe in the Constitution."
"I think in this case the 14th Amendment is pretty clear," Ryan told WVLK, "and that would involve a very, very lengthy Constitutional process."
In the interview clip, Trump also falsely claimed that the United States is the only country in the world that grants automatic citizenship to people born on its soil.
"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," Trump said. "It's ridiculous. It's ridiculous. And it has to end."
This is wrong. More than 30 countries across the globe grant so-called birthright citizenship, including Canada and Mexico.
Trump's comments were criticized Tuesday as fear-mongering in the week before the midterm elections.
In July, former Trump administration national security official Michael Anton wrote a Washington Post op-ed criticizing birthright citizenship, calling it "a mistake whose time has gone" and urging President Trump to use an executive order to direct federal agencies "that the children of non-citizens are not citizens."
Anton's argument — which appears to be similar to Trump's stance — is that when the Supreme Court ruled on this issue in the case United States vs. Wong Kim Ark in 1898, it was dealing with a child who had been born to parents who had permanently and legally immigrated to the country, and that the Court never meant this to apply to a child of unauthorized immigrants.
"Such an order would, of course, immediately be challenged in the courts," Anton wrote. "But officers in all three branches of government — the president no less than judges — take similar oaths to defend the Constitution. Why shouldn’t the president act to defend the clear meaning of the 14th Amendment? Judges faithful to their oaths will have no choice but to agree with him."
The op-ed was widely criticized by constitutional scholars and pundits alike.
"Virtually all the complaints from today’s birthright citizenship deniers were heard when the citizenship clause was debated 150 years ago," Elizabeth Wydra, president of progressive think tank and law firm the Constitutional Accountability Center, wrote in a response to Anton's op-ed in July. "They lost. The Constitution won. Birthright citizenship is guaranteed to all those born on US soil, regardless of the immigration status of their parents."