“If Trump abuses his powers to undermine the 14th Amendment, that’s a lawless and wholly impeachable offense.” – John Nichols, The Nation
“You cannot end birthright citizenship with an executive order. You obviously cannot do that. As a conservative, I’m a believer in following the plain text of the Constitution and I think in this case the 14th Amendment is pretty clear [on birthright citizenship].” -Paul Ryan, Globohomo
Two quotes from seemingly opposite ends of the political spectrum, but in reality both men – if you can call them that – are lobbying for the same goal: an unfettered stream of 3rd world invaders to forever dilute and destroy American culture. Both are predicated on the idea that you aren’t armed with the proper ahhhhguments and will accept their consensus. Let’s change that:
SCOTUS has never ruled on the issue of birthright citizenship in terms of citizenship granted to children of illegals. 14A was part of this moral crusade in favor of egalitarianism in the aftermath the Civil War aimed solely at granting citizenship to the children of slaves. 14A was also done under duress – southern states were forced to ratify to regain representation in Congress, but I digress.
14A did not include Native Americans (added by SCOTUS in 1884 – Elk v. Wilkins). It also did not include children of legal immigrants (added by SCOTUS in 1898 – U.S. v Wong Kim Ark). The fact that SCOTUS can go back and modify the original intent of 14A in itself is an affront to the integrity of the constitution, thanks to Marbury v. Madison (subject of a future deep-dive), but even with these subsequent rulings, at no time were illegal aliens included.
The only mention of them at all was as a footnote in 1985 in INS v Rios-Pineda. Justice William Brennan said in commentary on the case that “no plausible distinction could be made between legal and illegal aliens”. Other than, you know, one group is illegal and the other is not. This all goes back to the original intent of 14A. One of its drafters, Senator Jacob Howard, made it clear during debate on the amendment that foreigners and aliens were not covered. This is key because SCOTUS must consider debate when deciding on this issue (more on that shortly).
Therefore, because the issue of children of illegal aliens has never been ruled on, POTUS is free under the Take Care Clause (Article II, Section III, Clause V) to rule on matters where there is no law from Congress, no constitutional provisions, and no binding precedent by the kritarchy. This also means Congress can act in parallel (or in tandem) with legislative action (no amendment is required). The notion that one is required is being made by the GOP not becase they don’t understand the constitution (they do), but because they are willfully obfuscating the issue.
This is why the full extent of Paul Ryan’s argument consists of “the constitution is clear on this issue”. Wading into a debate on the minutia is the last thing they want to do. Polling confirms the issue is popular with their base and deebly goncering for their donors.
We don’t yet know what the EO will look like, but we can speculate. In all likelihood, Trump will issue a directive to executive branch agencies to decline to recognize children of illegal aliens as U.S. citizens. Period. Activist judges will try to obstruct the EO, which will eventually make its way to SCOTUS. The language and context is so clear cut that it will be difficult for Gorsuch or even Roberts to rule against it, but even if they do against the EO itself, it means they must address 14A.
As a hedge, Congress must also act on legislation, either as a standalone bill or as part of comprehensive immigration reform. Ending birthright citizenship is the perfect companion to ending chain migration and voters will not accept anything less than full cessation of both.