Commentary: Why Trump can't just end birthright citizenship

Donald Trump knows that in politics, sometimes you can win by losing.

After making immigration reform a focus of his campaign, Trump, in an interview on NBC’s “Meet the Press,” promised to end birthright citizenship, calling the concept “ridiculous.” Perhaps the president-elect disfavors citizenship for people born in the U.S. as a matter of policy, but eliminating a legal right guaranteed by the Constitution is a tall order. Even so, it may be that Trump believes that an aggressive stance on immigration is what matters most.

The main obstacle Trump faces is the language of the Constitution. Section 1 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.”

Trump could challenge that provision in several ways — all likely to fail. First, he could call for a constitutional amendment to change the law. Article V of the Constitution provides for amendment when proposed by two-thirds of both houses of Congress or two-thirds of all states and then ratified by three-fourths. There is a reason our Constitution has been amended only 27 times in our nation’s history. The process was designed to be difficult to protect stability in our governance. In today’s deeply polarized times, the likelihood of a constitutional amendment on immigration seems virtually impossible.

Second, Trump could seek to change the law by legislation. One former Trump administration official has proposed a federal statute stating that children of non-citizens are not “subject to the jurisdiction” of the U.S. That language would remove them from the protection of the 14th Amendment’s Birthright Clause.

This route, too, would likely go nowhere. In addition to the difficulty of passing legislation when the Senate’s thin GOP majority can be blocked by filibuster, such a statute is also poor policy because it would open the door to numerous other problems. Being subject to the jurisdiction of the U.S. means that a person can be brought into court for violating its laws. Placing someone outside the jurisdiction of the U.S. is a privilege we bestow on diplomats to protect them from courts. Immigration hawks would not want to put the children of non-citizens beyond the reach of the judicial system.

That leaves Trump’s best option as an executive order directing federal agencies to disregard the 14th Amendment. Of course, such an order would violate Trump’s oath to support and defend the Constitution, but we have been here before. By denying passports, Social Security numbers, and other citizenship rights, the administration would deliberately invite lawsuits to challenge its conduct. Those lawsuits would likely work their way up to the Supreme Court, where the Trump administration would argue that the Birthright Clause excludes the children of non-citizens in the U.S. unlawfully. But this strategy, too, is likely to fail.

Of course, we have seen legal precedent overturned in recent years on topics ranging from abortion to affirmative action to the authority of administrative agencies. However, unlike those issues, birthright citizenship is a right explicitly outlined in the language of the Constitution, making it more difficult for the Supreme Court’s textualists to reject it. The provision was adopted following the Civil War to ensure the citizenship of formerly enslaved African Americans. A federal statute confers citizenship using the same language.

There is also legal precedent. In 1898, the Supreme Court decided that the provision applied to the children of non-citizens in United States v. Wong Kim Ark. In that case, a man born in California to Chinese immigrants left the country. While he was away, Congress passed the Chinese Exclusion Act, which prohibited him from re-entering. The Court held that his birth on U.S. soil conferred citizenship and permitted his return.

Some scholars have argued that Wong Kim Ark is limited to the children of immigrants living in the country lawfully and does not extend to undocumented immigrants. That argument seems to be refuted by the language of the opinion itself, which states: “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.”

Wong Kim Ark noted that the 14th Amendment’s text excludes several categories of people born in the U.S., such as the children of diplomats and “of enemies within and during a hostile occupation of part of our territory.” While that language would seem to refer to the children of soldiers in the invading army of a foreign sovereign, Trump could argue that it applies to undocumented immigrants.

At least one judge, James C. Ho of the U.S. Court of Appeals for the Fifth Circuit, whom Trump appointed, has equated undocumented immigrants with an “invasion” in a different context, but only in dissent. If Ho could not convince even his conservative colleagues on the Fifth Circuit bench, it is difficult to see a majority of justices on the Supreme Court buying this argument.

But even legal failure could mean political victory for Trump. He could portray himself as tough on immigration and blame Congress or judges for resisting his efforts. In the meantime, it is possible that just issuing an executive order to end birthright citizenship, along with promises of “mass deportations,” would cause some undocumented immigrants to self-deport or deter them from entering the country in the first place.

The downside is the uncertainty that results when executive orders direct federal employees to take unlawful action. I was serving as a U.S. attorney in Michigan when Trump issued his travel ban in January 2017. The executive order applied to even green card holders, also known as lawful permanent residents, in violation of the due process clause of the Fifth Amendment. The order resulted in chaos at airports and land border crossings as federal officials tried to figure out how to reconcile the order with the law. The order was upheld by the Supreme Court only after two revisions.

Of course, real border solutions require comprehensive immigration reform, including far more resources for asylum officers, immigration judges, and border patrol agents, all of whom are overwhelmed by the daily crush of migrants seeking to enter the U.S. Relief for source countries to reduce the need for people to flee their homes is also part of any long-term solution.

Tough talk about birthright citizenship may score short-term political points, but it won’t solve our country’s fundamental immigration problems.

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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Barbara McQuade is a professor at the University of Michigan Law school, a former U.S. attorney and author of Attack from Within: How Disinformation Is Sabotaging America.

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