The Constitution Can’t Be Changed by Executive Order

By Omar Jadwat

President Trump said last week that he is preparing an executive order to try to take away the citizenship guarantee in the 14th Amendment to the Constitution, which says that people born in the United States are United States citizens. On Tuesday, Sen. Lindsey Graham announced that he would introduce legislation with the same aim.

But the president cannot repeal part of the Constitution by executive order. And Congress cannot repeal it by simply passing a new bill. Amending the Constitution would require a two-thirds vote in both the House and Senate, and also ratification by three-quarters of the states. The effort to erase the citizenship guarantee will never clear those hurdles — for very good reasons.

Birthright citizenship is one of the bedrocks of this country. More than 150 years ago, the 14th Amendment guaranteed to all those born within the United States citizenship, without regard to parentage, skin color, or ethnicity. And the Supreme Court ruled, more than 100 years ago, that the citizenship guarantee applies fully to U.S.-born children whose parents have no right to citizenship.

Before the amendment was enacted, American citizenship was controlled by the abhorrent 1857 Supreme Court decision Dred Scott v. Sandford. In that case, the justices found that Black people born in the United States were not citizens, but rather a “subordinate and inferior class of beings” with “no rights or privileges but such as those who held the power and the Government might choose to grant them.” Neither slaves, nor freed slaves, nor their descendants could ever become citizens, the justices ruled.

After the Civil War, Congress overruled Dred Scott by passing the 14th Amendment. The definition of citizenship is part of its very first sentence: “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.” In one sweep, the clause guaranteed citizenship to previously enslaved people and their children — and ensured that the law would never again perpetuate a multigenerational, permanent underclass of individuals barred from American citizenship.

In 1898, the Supreme Court confirmed that the 14th Amendment guaranteed citizenship to all children born on U.S. soil, no matter what their parents’ status. In United States v. Wong Kim Ark, the justices found that a baby born in San Francisco to parents who were citizens of China — and subject to the Chinese Exclusion Act, which prohibited them from becoming U.S. citizens themselves — was automatically a citizen at birth. The court specifically rejected the argument that a child in those circumstances was not “subject to the jurisdiction” of the United States, and thus excluded from the Constitution’s citizenship guarantee.

Only a few categories of people are excluded: children of foreign diplomats, children of enemy soldiers present in the U.S. during an occupation, and children of Native American tribes, who have American citizenship under a separate provision of law.

At least since 1898, there has been no serious question about whether children born in the United States can be denied American citizenship because of the status of their parents. James C. Ho, who was recently appointed by President Trump to the Court of Appeals of the Fifth Circuit, has written that citizenship “is protected no less for children of undocumented persons than for descendants of Mayflower passengers.” Similarly, Walter Dellinger, who was assistant attorney general in the Clinton administration, told Congress in 1995 that legislation to nullify birthright citizenship was “unquestionably unconstitutional.”

Of course, Dellinger acknowledged, “Congress is free to propose, and the states to ratify, any amendment to the Constitution. Such naked power undeniably exists.” Yet the Constitution stands for certain enduring principles, as he said in testimony before the House. “For us, for our nation, the simple, objective, bright-line fact of birth on American soil is fundamental.”

Omar Jadwat is the Director of the ACLU Immigrants’ Rights Project


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24 Comments

  1. Jeff M

    First, executive order.  Next, legislation.  Then leftist activist attorneys will sue.  SCOTUS will side with the plaintiff.  And finally… after years of corruption and exploitation of our true constitutional intent for birthright citizenship, we will make it right.

    George Washington, in a letter to John Adams, similarly emphasized that immigrants should be absorbed into American life so that, “by an intermixture with our people, they, or their descendants, get assimilated to our customs, measures, laws: in a word soon become one people.”

    Alexander Hamilton wrote in 1802: “The safety of a republic depends essentially on the energy of a common national sentiment; on a uniformity of principles and habits; on the exemption of the citizens from foreign bias and prejudice; and on that love of country which will almost invariably be found to be closely connected with birth, education, and family.”

    Hamilton further warned that “the United States have already felt the evils of incorporating a large number of foreigners into their national mass; by promoting in different classes different predilections in favor of particular foreign nations, and antipathies against others, it has served very much to divide the community and to distract our councils. It has been often likely to compromise the interests of our own country in favor of another.”

    John Adams: “…cannot we find an American capable and worthy of the trust? …Why should we take the bread out of the mouths of our own children and give it to strangers?”

    And the primary point made by one of the key authors of the 14th Amendment…

    John Bingham: “Every human being born within the United States of parents not owing allegiance to any foreign sovereignty is in the language of your Constitution itself, a natural born citizen.”

    In other words, legal residents of the country.

    1. Eric Gelber

      I don’t know that this constitutional issue will be settled by the self-proclaimed constitutional experts on the Vanguard; but the presumed intent of the original framers is of little value, given that birthright citizenship is addressed in the 14th Amendment, adopted decades later, and has been interpreted consistently by courts ever since. Legal residents of the country are still citizens of a foreign sovereignty, by the way.

  2. Don Shor

    It seems to me, as a lay observer, that “allegiance” refers to one who is an employee or sworn representative of a foreign government, as specified such as diplomats, soldiers, enemy combatants, etc. It isn’t ‘everyone who happens to be from another place’.

    I would think that conservatives would be very concerned about a president who seeks to directly change the Constitution by executive order.

    My own values put the 14th Amendment somewhat higher than the musings of Hamilton and his peers, because the document they produced led directly to the problems that necessitated the 14th Amendment. In other words, they didn’t think of everything, and that caused some really messy problems.

    Seems that this requires a constitutional amendment, not a law, not an executive order, not a Supreme Court decision. But it doesn’t take much research to find that the conditions for citizenship have changed a lot over the years.

      1. Eric Gelber

        What’s your point? This language is found in several constitutional amendments. It gives Congress the right to enforce a constitutional protection, not change what the constitutional right is.

        It certainly does not confer any authority on the President to change a constitutional right by way of an executive order.

    1. Ken A

      I’m betting that the guy who wrote this article does not have any problem with a President and others changing the second amendment (that does not give CA the right to take away the ability of my kids to buy a .22 with a folding stock or 25 round magazine like legally bought years ago).

      California recently raised the age to legally “keep and bear arms” from 18 to 21 without a peep from the ACLU.  I’m wondering if they would be OK raising the age for the first amendment to 21 (or even 41)?

       

      1. Eric Gelber

        Laws governing constitutional rights–including gun possession, speech, immigration, etc.–are consistent with the Constitution if they are reasonable and don’t encroach unnecessarily on civil liberties. The U.S. Supreme Court has said that the Constitution does not confer a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The ACLU has, in fact, raised civil liberties concerns with some gun restrictions. See: The ACLU’s Position on Gun Control. Of course, there are differences of opinion between the ACLU and the NRA over what limitations are justified.

        The 14th Amendment explicitly grants the right to birthright citizenship. Neither Congress nor the president has the ability to unilaterally repeal that right, as Trump and Lindsey Graham intend to do.

        1. Jeff M

          It is fun to read you walking this fine line of smoke.

          Illegal immigration that leads to birthright citizenship encroaches dearly on US legal residents’ civil liberties.  Their civil liberty to not be able to acquire affordable housing… to not be able to find a good paying job… to not have their taxes continually raised to pay for the swelling number of poor… to not have their schools impacted…. to not have their emergency rooms impacted… not not have their stuff stolen… and to not have liberal Democrats gain political power by the exploitation of all those new poor people more dependent on handouts.

        2. Jeff M

          You have an unusual definition of “civil liberties.”

          I am just taking a page out of the liberal social justice warrior playbook that says all these things are rights:  housing, medical care, education, protection from crime, a living wage, etc.

          An accepted definition of a civil liberty is:

          “individual rights protected by law from unjust governmental or other interference”

          If these things are rights as liberals tend to maintain, then all legal residents of the US should be protected from unjust governmental interference… including government interference resulting from Sanctuary Cities and States, Democrat resistance to immigration reform and GOP establishment support for importing cheap labor.

          I believe that Democrats opened the door for a SCOTUS decision not in their favor for failing to take the Trump Administration offer for amnesty for exiting illegal immigrants and their children.  It was clearly political and indicative of a need for a court interpretation of original intent… which differs greatly from the obvious intend of Democrats and old establishment Republicans.

        3. Eric Gelber

          Jeff – If that’s the way you feel, you should support amending the Constitution, not an unconstitutional abuse of power by the President or Congress.

        4. Jeff M

          The Constitution does not need any amending for this.  The current court which includes five real awake jurists can consider original intent and easily rule that illegals are not allowed to come here to make give birth just so their children get US citizenship.

          Liberals telegraph their political agenda here as if they were really the advocated of their poor and disadvantaged members of their community as they say they are, they would support this outrageous exploitation of our laws by foreigners.   In fact every leading Democrat prior to Trump being elected is on record saying exactly the same thing… that children born to illegal immigrants should not be given citizenship.

          What changed?  Trump is what changed.

          So the court can just rule that Democrats are too afflicted with TDS to effectively govern.

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