WASHINGTON – President Donald Trump may have met his match Tuesday: the 14th Amendment to the U.S. Constitution. "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 1868 amendment begins. "It's ridiculous," Trump said 150 years later, on the eve of midterm elections that could erode his power, perhaps for the rest of his presidency. "And it has to end." So began the 45th president's latest legal, policy and political battle, neatly contained in a history lesson dating to Reconstruction. As the administration vowed to block a migrant caravan heading toward the southern border and delay a trial next week on its plan to ask about citizenship on the 2020 Census, Trump turned his focus on generations of American-born citizens. In doing so, he took on both the Constitution and federal law. Title 8, Section 1401 of the U.S. Code lists those people deemed to be citizens of the United States, starting with "a person born in the United States and subject to the jurisdiction thereof." The Supreme Court ruled in United States v. Wong Kim Ark, an 1898 case, that a man born on U.S. soil to parents who were Chinese nationals was a citizen. As part of a 1982 decision, Plyler v. Doe, the high court said that even if someone enters the country illegally, they are within U.S. jurisdiction, and their children born in the U.S. are entitled to the protections of the 14th Amendment. Trump said he has been advised he can reverse both the Constitution and the law and end birthright citizenship by executive order. He has some support. Michael Anton, former spokesman for the National Security Council, wrote in The Washington Post recently that the 14th Amendment was written so as not to apply to undocumented immigrants. Because the amendment addresses people subject to U.S. jurisdiction, Anton wrote, it distinguishes between "people to whom the United States owes citizenship and those to whom it does not. "Freed slaves definitely qualified," Anton said. "The children of immigrants who came here illegally clearly don't." Other conservatives contend that at least Congress, if not the president, can end birthright citizenship by legislation. John Eastman, director of Claremont Institute's Center for Constitutional Jurisprudence, has written that the 1898 ruling applied only to the children of legal immigrants. "It is long past time to clarify that the 14th Amendment does not grant U.S. citizenship to the children of anyone just because they can manage to give birth on U.S. soil," Eastman wrote in The New York Times. Most legal scholars disagree. In testimony before Congress in 1995, assistant attorney general Walter Dellinger said even congressional efforts to deny citizenship to some children born in the U.S. were non-starters. "No discretion should be exercised by public officials on this question – there should be no inquiry into whether or not one came from the right caste, or race, or lineage or bloodline in establishing American citizenship," Dellinger said. "In America, a country that rejected monarchy, each person is born equal, with no curse of infirmity, and with no exalted status, arising from the circumstance of his or her parentage." On Tuesday, Dellinger noted that Trump’s proposal would question even the citizenship of people whose parents or grandparents had birthright citizenship. Dellinger is a liberal, but many conservatives agree with his assessment. James Ho, named by Trump to the U.S. Court of Appeals for the 5th Circuit last year, wrote in 2011 that states' efforts to rewrite U.S. citizenship law was unconstitutional. "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 wrote. "Birthright citizenship is a constitutional right, no less for the children of undocumented persons than for descendants of passengers of the Mayflower." Before the Civil War, the Constitution did not define explicitly what made someone a U.S. citizen, leading to decades of disputes, according to legal scholars Akhil Reed Amar and John C. Harrison. The Supreme Court had ruled in 1857's Dred Scott v. Sandford decision that people of African descent, whether slave or free, were not entitled to full citizenship. "At the simplest level, the 14th Amendment's Citizenship Clause was meant to repudiate Dred Scott," Amar wrote. "However, it was also meant to root post-Civil War America – America’s Second Founding – in an inspiring Lincolnian reinterpretation of one of our nation’s Founding truths, that we’re all created/born free and equal." Amar, a Yale University law professor, said the amendment's citizenship clause "marked an important shift in American identity" and "established a simple national rule for citizenship: If you’re born in America under our flag, you’re a U.S. citizen." More:Back to the future: A week before Election Day, Trump targets birthright citizenship, inflaming both sides More:Far from U.S.-Mexico border, immigration debate dominates many 2018 House races More:Midterms: Trump focuses on preserving a GOP-run Senate in rally-filled sprint to the election<doc-sep>To accomplish the idea he floated on Tuesday, Mr. Trump would have to find a way around the 14th Amendment to the Constitution, which 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.” The amendment means that any child born in the United States is considered a citizen. Amendments to the Constitution cannot be overridden by presidential action — they can be changed or undone only by overwhelming majorities in Congress or the states, with a two-thirds vote of both houses of Congress or through a constitutional convention called for by two-thirds of state legislatures. Some conservatives have long made the argument that the 14th Amendment was meant to apply only to citizens and legal permanent residents, not immigrants who are present in the country without authorization. In an opinion piece in The Washington Post this year, Michael Anton, a former spokesman for Mr. Trump’s National Security Council, said birthright citizenship was based on a misreading of the amendment, and of an 1898 Supreme Court ruling that he argued pertained only to the children of legal residents. “The notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity — historically, constitutionally, philosophically and practically,” Mr. Anton wrote in July. “An executive order could specify to federal agencies that the children of noncitizens are not citizens.” Mr. Trump told Axios that while he initially believed he needed a constitutional amendment or action by Congress to make the change, the White House Counsel’s Office has advised him otherwise. “Now they’re saying I can do it just with an executive order,” Mr. Trump said. The White House did not immediately respond to requests for clarification of the legal grounds the president’s lawyers have given him for validating such a move. His discussion of the idea comes after the administration announced it was streaming more than 5,000 active-duty troops to the southern border, part of an election-season rash of executive action Mr. Trump has undertaken as he works to energize his anti-immigrant base.<doc-sep>WASHINGTON—President Trump said he wants to sign an executive order that ends the automatic right to citizenship for anyone born in the U.S., ratcheting up his election-season remarks on immigration with a proposal many legal scholars said is unconstitutional. In an interview published Tuesday morning, just ahead of next week’s midterms, Mr. Trump said he planned an executive order to end what is known as birthright citizenship, bypassing Congress and waving off the belief of many legal scholars that such a move would require a change to the Constitution. “It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” he told Axios. “It’s in the process. It’ll happen, with an executive order.” Constitutional scholars dismissed the idea, saying a president has no legal standing to end birthright citizenship with an executive order. “It’s basically saying the president is above the Constitution,” said Laura K. Donohue, a senior scholar at the Georgetown Center for the Constitution. The White House didn’t further explain Mr. Trump’s assertion that he alone could make the move, and it didn’t provide further details about the scope of the proposed executive order or the timing. “We will let you know when we have an announcement,” White House press secretary Sarah Sanders said. Birthright citizenship is a pillar of U.S. immigration law and is protected by the Constitution’s 14th Amendment, which, among other goals, was designed to grant full citizenship to former slaves. But some conservatives who favor more restrictive immigration laws have opposed the policy, saying it improperly rewards the children of people in the country who lack proper documentation. Mr. Trump’s proposal is the latest in a string of pronouncements as he seeks to invigorate GOP voters ahead of the midterms. He recently suggested a middle-income tax cut that appeared to surprise both his staff and lawmakers. Last week, he said he would seek to cut prices that Medicare pays for some prescription drugs, but that wouldn’t go into effect until late 2019 or 2020. On immigration, Mr. Trump has seized on a slow-moving migrant caravan headed toward the U.S.-Mexico border, part of his push to toughen rules on people seeking asylum in the U.S. Mr. Trump has previously said he opposed birthright citizenship, but he hadn’t floated an executive order nor included it in his list of requests during the latest round of congressional negotiations. The Justice Department’s official position from 1995, posted on its website, is that only a constitutional amendment can alter the citizenship provision; a bill or executive order doing so would be “unconstitutional on its face,” the department’s Office of Legal Counsel concluded. A spokeswoman didn’t respond when asked if that opinion would now be reconsidered. The 14th Amendment, ratified in 1868, states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Some opponents of birthright citizenship have argued the “subject to the jurisdiction thereof” clause could be read to exclude babies born to people who were in the U.S. illegally. That interpretation, however, runs contrary to the Constitution Annotated, published by the Library of Congress, which says the “jurisdiction” exclusion applies to “children born of diplomatic representatives of a foreign state, children born of alien enemies in hostile occupation, or children of members of Indian tribes subject to tribal laws.” The Supreme Court has routinely applied the amendment broadly when it has been tested. Critics of birthright citizenship also have taken aim at what some call “birth tourism,” in which pregnant women travel to the U.S. in order to have children who receive the benefit of citizenship. Companies in China have attracted attention in recent years for advertising such services. Amending the Constitution is exceedingly difficult, requiring supermajority support from Congress and assent from 38 state legislatures, or a constitutional convention, the last of which was held in 1787. As a workaround, Republican lawmakers have periodically introduced legislation to change the historic understanding of the 14th Amendment, without success. Rep. Steve King (R., Iowa) has repeatedly done so, and Sen. Lindsey Graham (R., S.C.) said Tuesday morning that he would push for another legislative effort. “I plan to introduce legislation along the same lines as the proposed executive order,” Mr. Graham wrote on Twitter while praising Mr. Trump. “Finally, a president willing to take on this absurd policy of birthright citizenship.” Newsletter Sign-up Notes on the News Today’s headlines, news in context, and good reads you may have missed, with Tyler Blint-Welsh. PREVIEW Sen. Chuck Grassley (R., Iowa), chairman of the Judiciary Committee, said he would “closely review” any order from Mr. Trump, but he indicated any policy changes on immigration should be left to Congress. Others openly disagreed with Mr. Trump. House Speaker Paul Ryan (R., Wis.), who is leaving office after this year, dismissed the idea of an executive order in an interview with a Kentucky radio station. Tweeted Rep. Justin Amash (R., Mich) about Mr. Trump’s comments: “A president cannot amend [the] Constitution or laws via executive order.” Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, called Mr. Trump’s plans ill-timed and misguided. “Aside from being unconstitutional, such an executive order would exacerbate racial tensions, exploit fears and drive further polarization across the country at a moment that calls for unity and inclusion,” Ms. Clarke said. In 2014, about 275,000 babies were born to unauthorized-immigrant parents, about 7% of the four million births that year, according to a Pew Research Center report on government data. Mr. Trump, in his Axios interview, incorrectly said the U.S. is “the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen.” Dozens of countries in the Americas, including the U.S., Canada, Mexico, Brazil and Argentina, have birthright citizenship, according to the CIA World Factbook. Most countries in Europe, Asia and Africa don’t, and they require that at least one parent be a citizen for their child to get automatic citizenship.<doc-sep>The president promised to put justices on the Supreme Court in the mold of the late Antonin Scalia, but we have no doubt what Scalia — who preached adherence to the text of the Constitution and the laws of the United States in light of their original meaning — would think about this proposal. To say that he would have declared it dead on arrival would be an understatement. Whatever one may think of the merits of adding a further exception to the 14th Amendment’s guarantee of birthright citizenship — and the more conservative of the two of us (Conway), were he redrafting the amendment from scratch, might consider adding another narrow exception — the simple fact is that the amendment, as written, doesn’t permit it.<doc-sep>
President Donald Trump says he wants to sign an executive order ending "birthright citizenship" for babies of non-citizens born on U.S. soil. Most citizens are taught early in their education that birthright citizenship is an immutable, undisputed right, explicitly granted by the Constitution. But, it turns out, birthright citizenship may not be a constitutional right. The Citizenship Clause of the 14th Amendment — enacted in 1868 — reads "(a)ll 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." If the clause simply omitted "and subject to the jurisdiction thereof" then there would likely be no debate, and birthright citizenship would be unassailable absent a constitutional amendment. But the "subject to the jurisdiction" language has created a lot of debate over the years. To some scholars, birthright citizenship has been the result of an accidental interpretation of the Constitution, federal law and Supreme Court precedent — an error that they believe can be corrected without Constitutional amendment. Shortly after the passage of the 14th Amendment, the Supreme Court in 1872 had an opportunity to interpret it in the "Slaughterhouse Cases," observing that the amendment's "main purpose was to establish the citizenship of" African-Americans. It also concluded that "subject to the jurisdiction thereof" was meant to exclude the children of "ministers, consuls, and citizens or subjects of foreign states born within the United States." The argument goes: If these categories of people were not "subject to the jurisdiction" then it follows that babies born of illegal immigrants have even less claim to citizenship. But then, in 1898, the Supreme Court decided U.S. v. Wong Kim Ark, holding that "a child born in the United States, of parents of Chinese descent, who, at the time of his birth, were subjects of the emperor of China, but have a permanent domicile and residence in the United States" was entitled to citizenship based on his birth on American soil. This case, together with the clear meaning of every other part of the Citizenship Clause — except for that tricky "subject to the jurisdiction thereof" part — form the bulk of the strongest arguments for birthright citizenship: To supporters, it's in the 14th Amendment, and the Supreme Court appears to have squarely decided the issue. But maybe it didn't. The Wong Kim Ark case did not actually decide whether children of illegal immigrants are entitled to birthright citizenship — only children of immigrant parents with "permanent domicile" in the United States. Some scholars go further and argue that the Wong Kim Ark decision is completely erroneous, and based on a mistaken interpretation of the 14th Amendment — a mistake that has caused a major constitutional misunderstanding that persists to this day. Those against birthright citizenship ultimately conclude that while the 14th Amendment Citizenship Clause has been misapplied, it was always intended to grant citizenship only to people who are born here and whose parents are not foreign subjects. To them, "subject to the jurisdiction" clause is not just some meaningless phrase, because there is a presumption that laws and the Constitution do not contain surplus or meaningless words. For the same reason that children of diplomats and invading armies would not be citizens, children of illegal immigrants should not be either. All of these children are — by this interpretation — not "subject to the jurisdiction" of the United States. Those who support birthright citizenship have a more straightforward argument. Whatever "subject to the jurisdiction" ultimately means, it doesn't change the rest of the language of the Citizenship Clause. If that vexing phrase has any limiting meaning, it just refers to the jurisdiction of the laws of the United States —just as someone who commits crimes in interstate commerce is "subject to the jurisdiction" of the U.S. government. Whichever side is right, there's a compelling historical — if not legal — argument for not amending the Constitution to remove birthright citizenship. The Constitution has been amended to expand rights and increase protections. It is rarely amended to remove existing rights. Arguably, the one time that has occurred in our history was the 18th Amendment, which imposed a federal criminal prohibition on alcohol. By any measure, that was ultimately a spectacularly unsuccessful amendment. Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.