Can an executive order really change the 14th Amendment?
Oct 30, 2018, 2:38 PM | Updated: 3:20 pm
President Donald Trump sparked a major controversy today when he claimed that he could put an end to birthright citizenship – a right that seems to be protected under the 14th Amendment – with nothing more than an executive order.
“It was always told to me that you needed a constitutional amendment,” the president said in an interview with Axios on HBO. “Guess what? You don’t.”
In essence, the president has suggested that he could rewrite a part of the American constitution without the support of a single other elected member of Congress.
But does he really have that power?
We at KSL looked into that question — and while President Trump doesn’t have quite as much power as his words suggest, it turns out that his claim might not be entirely impossible.
Birthright citizenship might not be a constitutional right
Since the 14th amendment became law 150 years ago, in 1868, the United States has accepted every child born on American soil as a citizen.
Since that law is a part of our constitution, it’s always been believed that it could only be changed by Congress through a process that would require widespread support from the House, the Senate, and the states alike.
In a sense, that’s still true. If the president wanted to amend the constitution, he would have to go through Congress.
But the president hasn’t said that he plans on amending the constitution, just that he wants to get rid of birthright citizenship. And, according to political strategist and Deseret News editor Boyd Matheson, that might be possible.
“If you put all the rhetoric aside, there has been an interesting debate over the interpretation of the 14th Amendment,” Matheson says.
The 14th Amendment to the Constitution
The issue comes down to some confusing wording in the first sentence of the 14th Amendment, which reads:
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.
Typically, that line has been interpreted to mean that anyone born in the US who can be prosecuted for violating American law is to be automatically granted citizenship. But until the Supreme Court rules on it, that interpretation isn’t completely set in stone.
The argument’s been made before that the phrase “subject to the jurisdiction thereof” could mean that the amendment only applies to citizens of the United States. And if President Trump could get the courts to accept that interpretation, he could theoretically put an end to birthright citizenship.
How an executive order could challenge birthright citizenship
That doesn’t mean that the president can just issue an executive order forcing the courts to change how they interpret the constitution.
If we take President Trump’s words literally, they aren’t true. The president cannot change the constitution or its interpretation with an executive order.
That’s something that even Paul Ryan, the Republican House Speaker, has made explicitly clear, telling WVLK Radio:
Well, you obviously cannot do that. You cannot end birthright citizenship with an executive order.
As Ryan has pointed out, an executive order from the president would be immediately challenged in court.
It’s possible, though, that that is precisely President Trump’s plan.
If he issued an executive order banning birthright citizenship, the Supreme Court would be forced to make an official interpretation of the 14th amendment.
If they ruled that the phrase “subject to the jurisdiction thereof” means that citizenship rights are only available to the children of citizens, his executive order could start a chain of events leading to the end of birthright citizenship.
All of that’s theoretical, of course. Even if the issue did make it to the Supreme Court, political analysts see it as extremely unlikely that they would accept President Trump’s interpretation of the 14th amendment.
Still, if the president is serious about his plan to issue an executive order, we won’t need to rely on theory anymore. We’ll find out for sure.
And President Trump says he’s dead serious.
“It’s in the process,” the president says. “It’ll happen … with an executive order.”