What we know about President’s Trump’s Executive Order

President Donald Trump said in an interview with Axios he plans to sign an executive order ending the right to citizenship for the children of non-citizens and unauthorized immigrants born on U.S. soil.

If signed, the executive order would likely face legal challenges swiftly. 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.”

Birthright citizenship is set forth in the 14th Amendment. It extends to persons, both legally and illegally present in the United States.

Based on the short clip released from the interview, it is not clear whether Trump would deny citizenship to the children of all non-citizens, or just to those of immigrants in the country illegally.

Fear mongering

The President is likely floating this idea as a political grandstanding maneuver ahead of the election. It is very possible the executive order will never see the light of day.

The potential executive order plan is a blatant attempt to create division among the electorate by pandering to the anti-immigrant voters ahead of the midterms.

Such a ploy is common with this administration. Recently, Trump has complained about the “caravan” of Central American migrants traveling to the U.S.-Mexico border in search of asylum. They seek to escape the poverty and violence in their home countries. The president has pushed false claims against the group. He said it constitutes “an invasion” and said, without evidence, that it includes “unknown” Middle-Easterners.

His administration announced it is sending over 5,000 active-duty troops to the southern border, move to create fear and works to energize his anti-immigrant base. This comes not too long after the administration’s idea to disincentivize legal immigrants from using public benefits

The Order Will Not Pass Legal Scrutiny

The proposal would most likely seek to deny citizenship to children born in the US to unauthorized immigrant parents. The President’s legal team would most likely argue the amendment applies only to children of lawful US residents and not unauthorized immigrants or those on temporary visas.

There is no ambiguity to the language of the 14th amendment, whatsoever. If we allow the President to override amendments to the Constitution through Executive Orders, we might as well just rip up the entire thing because none of it would matter anymore.

Shortly after the Civil War, Congress added the 14th Amendment to our constitution. The main intent behind passing it was to provide equal protection to all persons.

Supreme Court Rulings

The Supreme Court upheld birthright citizenship in the 1898 United States v. Wong Kim Ark case. The court affirmed the citizenship of a man born on U.S. soil to parents who were Chinese nationals.

Unless the person is a diplomat, or otherwise specifically exempted by Congress (e.g., a Native Americans in the reservation system), a person within the borders of the United States is subject to the jurisdiction of the United States.

Plyler v. Doe, held denying immigrant children in the country illegally admission to public schools would violate the 14th Amendment’s equal protection clause. Justice William Brennan wrote the majority opinion. He noted language from the Wong Kim Ark ruling. He said, “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Bottom line, the argument floating the President that illegal immigrants are not citizens under the 14th Amendment because they are not “subject to the jurisdiction thereof” does not comport with the holding in Plyler.  

Congress could make an exception

Congress can carve out an exemption regarding migrants in the country without legal status. They’ve done so before regarding Native American tribes. However, this executive order is wholly ridiculous.

 

This is not the first time Trump fiddled with this idea. In an interview with former Fox News host Bill O’Reilly November 2015, Trump claimed Congress could act on the issue. “You don’t have to do a constitutional amendment,” he said.  “You need an act of Congress. “Everybody thought you needed a constitutional amendment. You don’t need that.”

Senator Lindsey Graham (R-S.C.) celebrated the news of the interview clip. He also wants to end birthright citizenship. He said he would introduce legislation towards their common goal. Introducing a bill which has next to zero chance of passing would be another example of political pandering.

Importance of voting

Determined to fuel the flames over immigration, the White House seeks to motivate the Republican base to turn out for elections.  Falsehoods are how the President got elected. It is time to send Congress a message, we see through the deceptions and will not stand for it.


Ask Henry Lim
Do you have a question for Henry Lim? During nearly 20 years of practicing law, he has helped more than 10,000 families with their immigration issues. You can Ask Henry a question at [email protected] or submit a video question by sending a link to one of our channels. For legal assistance, email or call for an appointment: 407-897-8870. Our first consultation is complimentary.