Another day, another display of racist lunacy from the Oval Office occupant. This time, he’s in Kentucky, and his target is the U.S. Constitution—specifically the 14th Amendment, which guarantees citizenship to all persons born in the United States.
“We’re looking at that very seriously, birthright citizenship, where you have a baby on our land, you walk over the border, have a baby - congratulations, the baby is now a U.S. citizen,” Trump said – mischaracterizing how most such citizenships are granted.
“It’s frankly ridiculous.”
He’s not talking about the white babies who are born here, either. “You walk over the border,” isn’t referring to Caucasian Canadians. No, there’s no doubt: He’s maligning Latino and Hispanic children and their parents. Sometimes, the racism is just painfully obvious.
For the record, the Citizenship Clause is the first sentence of the 14th Amendment to the United States Constitution, adopted in 1868.
"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."
The clause has been commonly and regularly interpreted as conferring American citizenship upon persons born within the United States, whether or not their parents are American citizens, and whether or not they are in this country legally.
No single individual, including this president, can invalidate a provision of the United States Constitution, no matter how “ridiculous” they may consider it to be. That is one of the reasons why we have a Constitution in the first place.
This isn’t the first time Trump has declared himself an enemy to the Constitution, of course, and, unfortunately, it is unlikely to be the last, considering that this type of rhetoric appeals strongly to his virulently anti-American, autocracy-worshipping Republican base. In 2018, Trump said pretty much the same thing in a formal interview with Axios, declaring that he would repeal the Citizenship Clause by executive order.
- "It was always told to me that you needed a constitutional amendment. Guess what? You don't," Trump said, declaring he can do it by executive order.
- When told that's very much in dispute, Trump replied: "You can definitely do it with an Act of Congress. But now they're saying I can do it just with an executive order."
Whatever “they’re saying” to Trump, which assumes that anyone actually has said anything, “they’re” almost certainly wrong. Judge James C. Ho, whom Trump himself appointed to the Fifth Circuit Court of Appeals, summed it up well—multiple times.
“Birthright citizenship is guaranteed by the 14th Amendment. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers,” the U.S. circuit judge of the U.S. Court of Appeals for the 5th Circuit wrote in a 2006 law review article. Contrary to Trump’s announcement Tuesday, Ho said that a constitutional amendment was the exclusive way to restrict birthright citizenship.
“Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution,” Ho said in a 2011 opinion piece published by The Wall Street Journal, reinforcing his earlier position.
This analysis for National Public Radio offers more information:
Most legal scholars say the Supreme Court settled this debate more than a century ago, holding that "subject to the jurisdiction thereof" refers to anyone present in the U.S., except for the children of diplomats and enemy soldiers (and, at the time, Native Americans).
"I think it's kind of a lunatic fringe argument," said Margaret Stock, an attorney at the Cascadia Cross-Border Law Group in Anchorage, Alaska, and a former law professor at the United States Military Academy at West Point, N.Y. "I've been debating folks like this for more than a decade, and they claim that the 14th Amendment's been misinterpreted," she said. "And now they've got a president in office who apparently was fixated on this as well."
Republican former Congressman and House Speaker Paul Ryan also addressed the issue, also in Kentucky, in 2018.
"You cannot end birthright citizenship with an executive order," Ryan said Tuesday in an interview with Kentucky radio station WVLK.
"You know as a conservative, I'm a believer in following the plain text of the Constitution," Ryan added. "And I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process."
So, as much as Trump would prefer that our Constitution be rewritten at his whim to incorporate his racist policies, it seems unlikely that even a right-wing dominated Supreme Court would stoop so low as to allow that to happen. At least for the time being.
