The US President told Axios on HBO that he would remove the right to automatic citizenship for babies of non-citizens or undocumented immigrants born in the US.

By Daniel Herborn

Posted on October 31, 2018

The right comes from the 14th amendment, but Trump claimed he could remove it without amending the constitution by simply signing an executive order.

“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump said of birthright citizenship.

Trump has put immigration reform back on the agenda

Such a change would radically shift a long-standing pillar of the US immigration system. Trump’s comments come just a day after the Pentagon ordered more than 5,000 troops to the US-Mexico border and the President ramped up his hardline immigration rhetoric.

The 14th amendment provides that anyone born or naturalised in the US and subject to its jurisdiction is a citizen of the US and the state where they live.

The amendment goes on to prohibit any state making a law which abridges the privileges of such citizens or denies equal protection of the law to them.

Trump’s colleague Paul Ryan, the Republican House Speaker, said such a move would be unconstitutional.

“We, House Republicans and this President, are in total agreement on the need to stop illegal immigration to secure our border and fix our laws,” Ryan said. “But I’m a believer in the Constitution. I believe in interpreting the Constitution as it’s written, and that means you can’t do something like this via executive order.”

The US Supreme Court has never explicitly ruled on the question of whether the 14th amendment applies to children of unauthorised immigrants.

The seminal 1898 case United States v Wong Kim Ark, is the authority on the amendment. There, the US Supreme Court ruled that the amendment covered “all children here born of resident aliens”, meaning that the court has only ever directly affirmed the rights of children whose parents were legal residents.

Legal scholars have however rejected outright Trump’s claim that he can end birthright citizenship with an executive order.

Peter Schuck of Yale Law School has previously opined that the amendment does not provide legal protection for children of those who have illegally migrated to the US though he rejected the notion that Trump could remove the amendment by an executive order.

“I feel confident that no competent lawyer would advise him otherwise,” he said. “This is just pre-election politics and misrepresentation and should be sharply criticised as such.”

Reactions to Trump’s assertion he will end birthright citizenship

Trump’s claim that the US is the only country to offer birthright citizenship has also been disproved; around 30 countries internationally have similar laws.

“He can’t do this, and he shouldn’t do this,” wrote Jeff Flake, a Republican Senator from Arizona, on Twitter. Flake has been at odds with Trump on a number of issues.

Lindsey Graham, a South Carolina Senator who has become one of Trump’s most vocal supporters, endorsed the proposal on Twitter. “Finally, a president willing to take on this absurd policy of birthright citizenship,” he wrote. In a later tweet, Graham promised to introduce legislation to the same end.