(RNN) – President Donald Trump has said birthright citizenship “has to end” and believes he can enact that policy without having to amend the Constitution.
The 14th Amendment to the Constitution, adopted in 1868 following the Civil War to guarantee the equal citizenship rights of freed slaves, established the concept of birthright citizenship.
It 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.”
But in an interview with Axios, a part of which was published Tuesday morning, Trump said he believed he could end the practice with an executive order.
“It was always told to me that you needed the Constitutional amendment,” he said. “Guess what? You don’t.”
As Axios noted, such an action would face immediate legal challenges, and at least one Trump-appointed federal judge, James C. Ho of the Fifth Circuit Court of Appeals, has written such a policy would be unconstitutional.
In practice, the 14th Amendment has conferred citizenship on anyone born in the U.S., regardless of the legal status of their parents.
The Supreme Court also explicitly held in the 1898 case United States v Wong Kim Ark that a child born to foreign citizens here permanently and legally “becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution.”
Conservatives targeting birthright citizenship, however, have argued the amendment was not meant to include foreign citizens here without permanent legal status.
Michael Anton, a former national security official in the Trump administration, wrote in The Washington Post in July that the framers of the amendment included a clause related to jurisdiction “precisely to distinguish people to whom the United States owes citizenship and those to whom it does not.”
“Freed slaves definitely qualified,” Anton wrote. “The children of immigrants who came here illegally clearly don’t.”
Trump, in the Axios interview, said of codifying that interpretation that, “you can definitely do it with an act of Congress, but now they’re saying I can do it just with an executive order.”
“Now how ridiculous, we’re the only country in the world where a person comes in, has a baby and the baby is essentially a citizen of the United States for 85 years with all those benefits,” the president said. “It’s ridiculous, it’s ridiculous. And it has to end.”
He said he had discussed the idea with White House counsel and that it was “in the process, it’ll happen, with an executive order.”
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