Only a few days into his second term in the White House, President Donald Trump is trying to make good on the flurry of executive orders—meant to provoke “shock and awe”—he had promised as part of plans to upend key foundations of American government.
His proposal to ban birthright citizenship figures prominently in his administration’s anti-immigrant agenda. While the order is likely to—eventually—fail under legal scrutiny, the damage it does is both immediate and long-lasting, and perhaps that’s the point. Without regard to the fear and uncertainty his efforts will cause in communities across America, Trump is likely to push ahead purely for the sake of making a political stand—catering directly to the most racist elements of his base, and to inflame existing tensions.
The order, which seeks to overturn the 14th Amendment’s birthright clause that grants citizenship to “all persons born or naturalized in the United States,” is an early front-runner for yielding the most lawsuits upon its signing. Twenty-two states have thus far filed to block the order; on Thursday, Seattle Senior U.S. District Court Judge John C. Coughenour issued a nationwide temporary injunction stopping it from going into effect. Coughenour, a Reagan appointee, heard 25 minutes of arguments before asserting that in his four decades on the bench, “I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order.”
Coughenour’s ruling is the first in what will be most likely a series of court losses and injunctions against the executive order. Trump will certainly seek to take the issue to the Supreme Court, but even there his best hopes of agreement will likely be limited to Justices Samuel Alito and Clarence Thomas.
This is because the order runs into pretty much an unstoppable combination of legal obstacles, including the Constitution, federal law, Supreme Court precedent, prior Department of Justice testimony, and the limited scope of executive orders. Let’s break it down:
On its face, the 14th Amendment clearly prohibits the order. Trump’s idea to circumvent the plain meaning therein is to read the language “and subject to the jurisdiction (of the United States)” as to exclude the children of those without legal status. The illogic here is evident, since his theory strips the United States of any legal authority over persons here illegally, even taking away the ability to declare them illegal. In essence, arguing that undocumented migrants are not subject to the jurisdiction of the United States is rather like saying the U.S. is powerless to enforce its immigration laws against them. This, of course, flies in the face of many other laws Trump hopes to enact.
In addition to the Amendment’s plain language, federal law (8 U.S.C. section 1401) codifies the Constitution’s definition of birthright citizenship when it states: “The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof.”
The Supreme Court’s landmark decision in the 1898 case United States v. Wong Kim Ark, further vindicated legal arguments made by a 21-year-old Chinese-American cook, born in San Francisco, who was arrested and ordered deported in 1895 after visiting China as an adult. In a 6-2 decision, the high court wrote: “The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States.” (Wong was subsequently allowed to return home to San Francisco; the precedent has been upheld in numerous cases since, including 1982’s Plyler v. Doe and 1985’s INS v. Rios-Pineda.)
And looming further over all of this is the limited scope of executive orders, which are a means by which the president “manages the operations of the Federal Government.” Being limited by definition to direction given to executive branch agencies, they cannot be used to overturn laws passed by Congress or amendments to the Constitution. Attempts to abuse executive orders have been blocked by courts previously—notably, Trump’s attempt to ban travel from Muslim countries which was twice blocked by courts as an impermissible use of executive orders.
But even with all this in mind, the legal controversy and fearmongering resonates at a deeper level, forcing us to consider exactly what is the American birthright. In the 19th century, French political philosopher Alexis de Tocqueville compared American egalitarianism to the societal traditions of Europe when he wrote that “aristocratic nations are naturally too apt to narrow the scope of human perfectibility; democratic nations to expand it beyond compass.”
Our democratic nation has elected Trump to the presidency a second time, yes, and it is now apparent that his use—and abuse—of executive power will test the limits of our moral and legal compasses. And the more we come to expect it, the easier it will be for him to cheat on that test.
