Trump called birthright citizenship a "crazy policy." Honestly, I'm ok with that (though I disagree). There's nothing wrong with policy disagreements, even constitutional ones, espeically policies that vary widely in the OECD world. Lots of fine democracies lack birthright. 1/
Indeed, there are plenty of policies set forth in our Constitution that *I* find to be essentially crazy. Minimum ages to run to office. The natural born citizen clause. The 3/4 state approval for amendments. You probably do too: many people hate state equality in the Senate. 2/
What I despise about Trump w/r/t birthright citizenship is twofold: first, his motivation for attacking it, which is essentially ethno-nationlist no matter how you spin it. Plenty has been written about this. As a politician, he's more or less a white supremacist. Gross. 3/
Second, and the thing I want to focus on here, is Trump seems to envision an absurdly expansive view of POTUS power. He appears to beleive not only he has the power to alter citizenship via executive order, but that such a power makes sense for POTUS. Wrong on both counts. 4/
Now, I don't think it's a good response to Trump to say "you can't alter the Constitution by executive order." Of course that's true, but that's not really the point: the issue is that people disagree about what the Constitution means.
Trump (and his attorneys) believes the "subject to the jurisdiction" clause of 14th amendment means birthright citizenship doesn't apply to children of illegal immigrants. That's a bad reading of original intent, court decisions, and 150 years of practice. But it's an argument.
By the way, as an aside: never let anyone in the executive branch try to convince you that the attorneys for the president, the WH counsel, or the OLC at DOJ have some sort of power to interpert the constitution in a binding way in regard to separation of powers. They don't.
Anyway, even if Trump's reading of the Constitution is correct---that the 14th amendment doesn't provide birthright citizenship to children of illegal immigrants---there's an entire code of statutory law on citizenship, provided by...Congress!
And there's the rub: in the 1950s, Congress reitereated the 14th amendment in statute (law.cornell.edu/uscode/text/8/…) as part of overhauling the statutory citizenship laws. You see, even if you don't have birthright citizenship, Congress can provide, by law, for statutory citizenship.
So if the intent of *Congress* in the 1950s was to give children of illegal immigrants statutory citizenship at birth (even if they somehow didn't have constituional citizenship), then there's exactly one institution that can alter those term. You guessed it: Congress.
Which is largely, in this instance, why the whole executive order business seems misplaced. Executive orders can't run afoul of the Constitution, of course. But they also can't run afoul of federal law.
So if Trump tries to deny citizenship documents (or services reserved for citizens) via executive order, the affected people might have a 14th amendment claim, but they are also going to have a statutory claim under titlle 8.
But set all that aside. Because the bigger picture here is perhaps more important: where should the United States vest it's citizenship provisions. We have chosen to put some of them in the Constitution. The remainder, currently, reside in federal law. That seems reasonable.
It would be quite a departure from that to now place some of them in the discretion of the POTUS. Why would that be bad? First, executive orders are very weak tools. They can't bind future presidents. Anything Trump did by EO could be reversed by a future POTUS.
We probably don't want citizenship policy changing back and forth whenever the whim of the president changes. Citizenship isn't a policy issue that lends itself well to instability. It also opens up all sort of questions: if you have EO citizenship, can a future EO revoke it?
But more importantly, citizenship is too important to too many things in the United States to be left at all vague. An EO on citizenship would almost inherently be vague, given how much citizenship interacts with other aspects of life. It's so much better as as law.
So, IMO, Trump's argument *should* be: I don't believe the 14th automatically confers citizenship on children of illegal immigrants, and I ask on Congress to end statutory citizenship for those people, and affirmatively deny them citizenship. Then we'll see what the Court says.
