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In late October, shortly before the midterm elections in the United States, President Donald Trump announced that he would sign an executive order ending what is known as “birthright citizenship.”  This move was seen as an effort to distract voters before the elections, as nearly all American legal scholars agree that President Trump lacks the legal authority to change the law in this way.

Birthright citizenship is part of the United States Constitution.  It was added in 1868 by the 14th Amendment, after the United States Supreme Court issued a decision that essentially held that black Americans were not U.S. citizens.  Under the 14th Amendment and Supreme Court cases interpreting it, all persons born or naturalized in the U.S. are citizens of the United States. This has become known as birthright citizenship.  It extends to anyone born in the United States, including children of immigrants, with exceptions for children of foreign diplomats, to hostile occupying forces, and to children born on foreign public ships.  Birthright citizenship is granted to children of undocumented immigrants.

This has been settled law in the United States for more than 120 years.  Currently, 30 countries in the world offer birthright citizenship, despite President Trump’s claims that the United States is the only country in the world that has it.  Both Canada and Mexico have birthright citizenship, along with most of Latin America.

While President Trump has claimed that he is able to end birthright citizenship through an executive order, without any action on the part of Congress, doing so would require a constitutional amendment.  Birthright citizenship is based on the 14th Amendment of the U.S. Constitution.  The Constitution can be amended in one of two ways: (1) with a two-thirds majority vote in both the House of Representatives and the Senate; or (2) by a constitutional convention called for by two-thirds of state legislatures.  With Democrats recently winning control of the House of Representatives in the House of Representatives and controlling 23 governorships, it is unlikely that this will happen.

According to Republican leaders, there is some question about whether birthright citizenship should extend to undocumented immigrants, rather than just to lawful permanent residents and other immigrants who are in the country legally.  However, as even Republican lawmakers have conceded, President Trump is not able to simply change a constitutional amendment with the stroke of his pen.  Instead, it will require an act of Congress to change the 14th Amendment to the Constitution and upend more than 120 years of law in the United States.

In his fight to maintain power, President Trump has made immigrants the target of his anger.  He has used fear of immigrant as a way to gain support, and this latest gambit was likely nothing more than a way to get his base excited before the midterms.  Despite his promises, the reality is that he simply cannot take this promised action.  He lacks the authority, and any attempt to do change the Constitution through an executive order will likely trigger a legal challenge.  With the political landscape significantly changed by the results of the most recent American elections, the Trump Administration will have a much harder time pushing through its more extreme proposed anti-immigration laws in the coming years.

Rusten Hurd

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