President Trump plans to sign an executive order that would remove the right to citizenship for babies of non-citizens and unauthorized immigrants born on U.S. soil, he said yesterday in an exclusive interview....This is being described as an election-year October surprise by, among others, The New York Times:
"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....
The president expressed surprise that "Axios on HBO" knew about his secret plan: "I didn't think anybody knew that but me. I thought I was the only one. "
President Trump said he was preparing an executive order to end birthright citizenship in the United States, his latest maneuver days before midterm congressional elections to activate his base by clamping down on immigrants and immigration.But Lawfare's Quinta Jurecic may be right:
this is 100% speculation, but based on the context, the way this reads to me is that there's a draft EO floating around that Axios caught word of, sandbagged Trump w, & he word vomited as he tends to do. the opposite of, eg, the gitmo EO, which was probably leaked to torpedo it
— Quinta 🎃 Jurecic (@qjurecic) October 30, 2018
Watch Axios's clip of the interview -- Trump seems genuinely surprised by the line of questioning.
Presumably a current or former staffer who's in favor of this policy change (Stephen Miller? Michael Anton?) leaked the existence of the executive order to Axios in order to get discussion of it into the mix. There may never have been a firm plan to issue an executive order before the election, and it still might not happen now or later -- although I suppose it's more likely to happen now that's it's been revealed because it's generating horrified responses from all of Trump's favorite enemies. Now he probably won't want to back down.
Can he do this? Many liberals insist that he simply can't -- it's unconstitutional. But as Vox's Dara Lind notes,
The Supreme Court hasn’t explicitly ruled that the children of unauthorized immigrants are US citizens. In the 1985 case INS v. Rios-Pineda, in which the parent of two US-born children challenged his deportation order, the Court referred to the children as US citizens by birth — but because the Court didn’t make a formal legal finding in this regard, the statement was just dicta, or rhetoric.Prior to that, in a nineteenth-century case, the Court ruled that Wong Kim Ark, a San Francisco-born child of Chinese immigrants, couldn't be barred from returning to the U.S. after a trip to China because "The right of citizenship ... is incident to birth in the country." However, the plaintiff's parents had arrived here legally, before the passage of the Chinese Exclusion Acts.
That's more ambiguity than the current Supreme Court typically needs to upend what's assumed to be settled law. There was no individual right to bear arms under the Second Amendment until the Supreme Court in 2008 created one out of whole cloth in District of Columbia v. Heller. This Court has trashed the Voting Rights Act and will soon do the same to Roe v. Wade. Why not birthright citizenship as well?
The answer is that conservatives are split on birthright citizenship, probably because corporations and right-wing billionaires are split on immigration. The Axios story notes that Judge James C. Ho, a Federalist Society-affiliated Trump circuit court appointee, disagrees with Trump. The Federalists are split on the issue -- you can read a debate on the society's website. (John Yoo is the co-author of the pro-birthright citizenship argument.)
Many fat cats and corporatists have long been pro-immigration -- recall the 1984 Wall Street Journal op-ed that propsed a five-word constitutional amendment: "There shall be open borders." An organization funded by the Koch brothers, the LIBRE Initiative, denounced Trump's call for an end to birthright citizenship in 2015. I think most of the Roberts Five care more about what the Kochs think than they do about what Trump thinks.
Some lower-court judge will block this executive order if it happens. Ultimately, though, if five movement-conservative justices on the Supreme Court rubber-stamp it, it will go into effect. But it's quite possible that there aren't five votes for this.
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