President Trump

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Trump Wants To End Birthright Citizenship For Some US-Born Babies

October 30, 2018 - 2:06 pm
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WASHINGTON (WCBS 880/AP) -- President Donald Trump wants to order the end of the constitutional right to citizenship for babies of non-citizens and unauthorized immigrants born in the United States.

Trump made the comments to "Axios on HBO" ahead of midterm elections that he has sought to focus on his hardline immigration policies. Trump, seeking to energize his supporters and help Republicans keep control of Congress, has stoked anxiety about a caravan of Central American migrants making its way to the U.S.-Mexico border. He is dispatching additional troops and saying he'll set up tent cities for asylum seekers.

Revoking birthright citizenship would spark a court fight over whether the president has the unilateral ability to change an amendment to the Constitution. The 14th Amendment guarantees that right for all children born in the U.S.

Asked about the legality of such an executive order, Trump said, "they're saying I can do it just with an executive order." He added that "we're the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States." A 2010 study from the Center for Immigration Studies, a group that supports immigration restrictions, showed that 30 countries offered birthright citizenship.

The Pew Research Center found in a survey published two years ago that births to "unauthorized immigrants" were declining and accounted for about 1 in 3 births to foreign-born mothers in the U.S. in 2014. About 275,000 babies were born to such parents in 2014, or about 7 percent of the 4 million births in the U.S. that year, according to Pew estimates based on government data. That represented a decline from 330,000 in 2009, at the end of the recession.

An excerpt of the interview was posted on Axios' website on Tuesday.

The president said White House lawyers are reviewing his proposal. It's unclear how quickly he would act and the White House did not provide further details.

A person familiar with the internal White House debate said the topic of birthright citizenship had come up inside the West Wing at various times over at least the last year, but has some internal detractors. White House lawyers have debated the topic, and expect to work with the Justice Department's Office of Legal Counsel to develop a legal justification for the action. It is one of many immigration changes being discussed including asylum law changes, and barring the migrant caravan from entering the country.

But administration officials said there would likely be no decisions until after the midterms, due in part to the president's trip to Pittsburgh Tuesday to meet with victims of the deadly synagogue shooting.

CBS News White House Correspondent Steven Portnoy tells WCBS 880 that there are very few legal scholars who believe that the president has the power to do something like this on his own.

"It's one thing if the Congress -- the House and the Senate combined -- were to pass a law that says a birthright citizenship is no longer, but the president's talking about an executive order, some kind of reinterpretation on his own about who's a citizen and who is not," Portnoy said. "There are very few legal scholars who believe the president has the power to do that but he told an interviewer he has consulted with the White House counsel's office and is prepared to proceed."

Omar Jadwat, director of the Immigrants' Rights Project at the American Civil Liberties Union in New York, said Tuesday that the Constitution is very clear.

"If you are born in the United States, you're a citizen," he said, adding that it was "outrageous that the president can think he can override constitutional guarantees by issuing an executive order, Jadwat said the president has an obligation to uphold the Constitution. Trump can try to get Congress to pass a constitutional amendment, "but I don't think they are anywhere close to getting that."

"Obviously, even if he did, it would be subject to court challenge," he added.

“The 14th Amendment has been the subject of an enormous amount of litigation but never to my knowledge has the right of every person born in this country to be a citizen been challenged,” said Donna Liberman, Executive Directors of the New York Civil Liberties Union.

President Trump’s hardline immigration campaign targets “anchor babies” and chain migration.

In a statement, the New York Immigration Coalition called it an “attack on the very foundation of America.”

Suzanna Sherry, a professor of law at Vanderbilt Law School specializing in constitutional questions, also expained that those who think Trump can change the Constitution via executive order are simply mistaken. "He can't do it by himself and, in fact, he can't do it even if Congress passed a statue."

"I think it would take a Constitutional amendment," she said. "I don't see it as having any plausible legal basis," she said.

“Executive orders are all subject to judicial review, so you know, no we can't do this,” said CBS News Legal Analyis Thane Rosenbaum. “The birthright citizenship is based in grounded in the Fourteenth Amendment.”

But others suggest the president may have an opening.

Jon Feere, a senior adviser at Immigration and Customs Enforcement, is among those who has long argued that that the president could limit the citizenship clause through executive action.

"A president could direct his agencies to fall in line with his interpretation of the Supreme Court's rulings, which are arguably limited to children of permanently domiciled immigrants (the court has never squarely ruled on children born to tourists or illegal aliens). He could direct his agencies to issue Social Security numbers and passports only to newborns who have at least one parent who is a citizen or permanently domiciled immigrant," he wrote in 2015 in an op-ed in the Hill.

In the final days before the Nov. 6 midterms, Trump has emphasized immigration, as he seeks to counter Democratic enthusiasm. Trump believes that his campaign pledges, including his much-vaunted and still-unfulfilled promise to quickly build a U.S.-Mexico border wall, are still rallying cries for his base and that this latest focus will further erode the enthusiasm gap.

Trump voiced his theory that birthright citizenship could be stripped during his campaign, when he described it as a "magnet for illegal immigration." During a 2015 campaign stop in Florida, he said: "The birthright citizenship - the anchor baby - birthright citizenship, it's over, not going to happen."

The Citizenship Clause of the 14th Amendment 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 was passed by Congress in 1866 during the period of Reconstruction after the Civil War. It was ratified in 1868 by three-fourths of the states. By extending citizenship to those born in the U.S., the amendment nullified an 1857 Supreme Court decision (Dred Scott v. Sandford), which ruled that those descended from slaves could not be citizens.

In addition to the debate over Trump's authority to declare that children born in the U.S. aren't citizens, a separate question is whether Congress could pass a law to that effect, or whether only a constitutional amendment could accomplish Trump's apparent aim of denying citizenship to U.S.-born children of those here illegally.

Ilya Shapiro at the Cato Institute agreed that it would be impossible to change the Constitution with the swipe of a pen. Though, he explained that the real legal debate is whether a Constitutional amendment is needed, or if Congress could change birthright citizenship with the help of the Supreme Court.

Vice President Mike Pence also took a stance Tuesday, saying there was some leeway because the court has never ruled on the language in the 14th Amendment.

Republicans in Congress also have continued introducing bills to end birthright citizenship, including legislation this session from conservative GOP Rep. Steve King of Iowa who has aligned himself with some nationalist political leaders abroad. King's bill has almost 50 co-sponsors in the House. King's legislation though would likely face a cool reception in the Senate where there is no companion bill pending, and a handful of senators supported past efforts.

King said he had not discussed the issue with the president at any length in recent months, but that it had come up "in passing" several times in group discussions. He said he hadn't personally considered birthright citizenship to be part of the caravan issue and applauded the president for connecting the issues.

"Sending this message out, it's another component of saying to the caravan: Don't come in here. Some are pregnant, no doubt," he said.

Sen. Lindsey Graham of South Carolina, now a close ally of the president, also tweeted his support for the change.

"This policy is a magnet for illegal immigration, out of the mainstream of the developed world, and needs to come to an end," he said.

The Axios HBO series debuts on Sunday.

(© 2018 WCBS 880. The Associated Press contributed to this report)