“It was always told to me that you needed a constitutional amendment,” Donald Trump said in an HBO interview recently, referring to repealing the United States Constitution’s 14th Amendment’s provision for “birthright citizenship,” the notion that a child born in the United States automatically becomes a U.S. citizen irrespective of the legal status of the parents. “Guess what? You don’t.”
Guess what? You do. Trump’s confusion (and, apparently, the confusion of some of his advisors) is centered around the misplaced notion that you can do anything you want with a presidential Executive Order. Trump believes he can use an Executive Order to strip birthright citizenship from America’s laws, rather than change the Constitution through the methods provided by the Constitution.
The confusion in part stems from the application of two fairly common Latin legal phrases, de facto and de jure. De facto (in fact) Donald Trump can write an Executive Order suspending the law of gravity if he wants to. De jure (in law), well, good luck enforcing it.
That is not to say that by writing such an EO, Trump can’t cause a great deal of trouble across the legal landscape. Any jurisdiction wishing to take his cockamamie EO seriously could (and quite probably will) attempt to test it in court. Not to mention it will probably trigger an automatic spate of legal injunctions challenging the Executive Order the minute such an order is signed.
But every legal challenge of the 14th Amendment will have one hundred and fifty years of legal precedent to overcome, and possibly need to undo, a virtually impossible task, even in the relatively Trump-friendly judiciary.
Trump added, “We’re the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits.” Not true. At least thirty countries have birthright citizenship enshrined in their laws.
Jess Morales Rocketto, of the group Families Belong Together said, “This is an attempt to whiteout America’s history and heritage as a nation of immigrants. And it’s unconstitutional.” Racism by Fiat is, no doubt, an attractive proposition for Donald Trump. Thankfully America’s Founding Fathers and the governmental machinery they subsequently put in place saw him coming from a long way off.
Robert Harrington is an American expat living in Britain. He is a portrait painter.